Too “Privileged” To Be Held Liable for Defamation, Says the Commercial Division

July 09, 2021

“Relevant statements made in judicial or quasi-judicial proceedings are afforded absolute protection so that those discharging a public function may speak freely to zealously represent their clients without fear of reprisal or financial hazard.”

Professionals, including attorneys, and individuals may find themselves subject to a defamation lawsuit. Attorneys, more so than others, may sometimes rely on absolute or qualified privileges to protect against a claim for defamation.

Last month, the First Department in Lewis v. Pierce Bainbridge Beck Price Hecht LLP affirmed Manhattan Commercial Division Justice Andrea Masley’s decision dismissing plaintiff’s defamation claim based on an absolute and qualified privilege. The Lewis court explored whether Defendant Sylvia Jeanine Conley’s (“Conley”) purported statements both in the course of litigation and pre-litigation were protected by a qualified privilege. Ultimately, the court determined that they were.

In Lewis, Plaintiff Donald Lewis (“Lewis” or “plaintiff”) worked as an attorney at Bainbridge Beck Price & Hecht LLP’s (“PB”) New York office. In October 2018, a PB employee accused plaintiff of sexual harassment. As a result, plaintiff was placed on administrative leave. Plaintiff was eventually terminated for violating the terms of his leave.

In March, 2019, plaintiff’s counsel sent PB a draft complaint that it intended to file in court, alleging, among other things, violations of plaintiff’s employment agreement. Between March and May 2019, Conley, a member of Littler Mendelson, P.C. (“Littler”), on behalf of PB, communicated with plaintiff’s counsel regarding the possible settlement of plaintiff’s claims.

On May 16, 2019, plaintiff filed the “First Lewis Complaint.” Littler, on behalf of PB, filed a motion to dismiss that action. On June 7, 2019, plaintiff commenced the instant defamation action against, among others, Littler, alleging: (i) aiding and abetting defamation; (ii) violation of Judiciary Law § 487; (iii) intentional infliction of emotional distress; and (iv) prima facie tort. The basis of plaintiff’s defamation claim was (1) Conley’s involvement in PB’s motion to dismiss the First Lewis Complaint; (2) Conley’s statements during the race to the court; and (3) Conley’s statements and conduct during settlement negotiations, prior to the commencement of any litigation.

Littler moved to dismiss the lawsuit as against it on the basis of absolute and qualified privilege. The Lewis court analyzed whether Conley’s statements were in fact privileged.

In New York, “statements made in the course of litigation are entitled to absolute privilege” (Front, Inc. v Khalil, 24 NY3d 713, 715 [2015]). New York courts have held that “[t]he principle underlying the absolute privilege for judicial proceedings is that the proper administration of justice depends upon freedom of conduct on the part of counsel and parties to litigation, which freedom tends to promote an intelligent administration of justice” (Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163, 171 [1st Dept 2007]). Such privilege applies “when such words and writings are material and pertinent to the questions involved” (see id.).  The test to determine whether a statement is pertinent is extremely liberal. “To be pertinent to the litigation ‘the barest rationality, divorced from any palpable or pragmatic degree of probability, suffices’” (Pomerance v McTieman, 51 AD3d 526, 528 [1st Dept 2008]). However, “where an attorney’s statements are so needlessly defamatory as to warrant the inference of express malice the privilege has been abused and protection is withdrawn” (Front, Inc., 24 NY3d at 718).

In Lewis, Justice Masley determined that Conley’s statements made after the commencement of the various lawsuits and her statements in the motion to dismiss the First Lewis Complaint were protected by absolute privilege.  Specifically, Justice Masley determined that Conley’s statements in her affirmation in support of the motion to dismiss the First Lewis Complaint were pertinent to that action and attached relevant documents.  Justice Masley also concluded that the supporting memorandum of law discussed case law pertinent to that action. The Court rejected plaintiff’s conclusory assertion that Littler’s motion to dismiss the First Lewis Complaint was frivolous.  The Court also noted that plaintiff failed to identify any actual statements made by Conley after the lawsuits were commenced.

The Commercial Division also concluded that Conley’s pre-litigation statements,  concerning plaintiff’s claims and the possible settlement thereof, were made in anticipation of litigation, were protected by a qualified privilege, rather than absolute privilege.  “If the statements are pertinent to a good faith anticipated litigation, no cause of action for defamation can be based on those statements” (Front, Inc., 24 NY3d at 715).  “This requirement ensures that privilege does not protect attorneys who are seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel’s ethical obligations” (see id.).  On the other hand, applying a privilege to pre-litigation communication encourages negotiation and “should be encouraged and not chilled by the possibility of being the basis for a defamation suit” (see id.).

Although Plaintiff attempted to argue that the privilege does not apply because he did not plead a direct defamation claim against Littler (having asserted only an aiding and abetting defamation claim and other non-defamation claims), the court rejected plaintiff’s argument and determined that plaintiff cannot avoid the privilege by repackaging a defamation claim.

The First Department affirmed the lower court’s decision, dismissing plaintiff’s aiding and abetting defamation claim and holding that defendant Conley’s purported statements in the course of litigation “are immune from liability for defamation based on an absolute privilege.” The Court explained that plaintiff failed to show that the statements made in the course of litigation were not “material and pertinent to the questions involved” in the litigation.  The First Department similarly held that Conley’s pre-litigation statements are protected by a qualified privilege.  The Court held that plaintiff failed to demonstrate that Conley “did not have a good faith basis for anticipating that litigation was bound to occur.”

Takeaway:

Attorneys should be reminded to refrain from making statements that could lead to a defamation claim and to use their best judgment in determining what information should be shared with others.

However, in the event an attorney is subject to a defamation suit, he/she must ask two main questions: (1) were the statements pertinent to the litigation; and (2) were the statements made in anticipation of litigation. If the answer to either question is “yes,” the defamation claim may be dismissed based on absolute or qualified privilege.