New York Court of Appeals Clarifies Scope of Protection for Attorney Statements Made Prior to Start of Lawsuit – Front v. Khalil:  New York’s Highest Court Holds That Pre-Litigation Statements Made by Attorneys Cannot be the Subject of Defamation Claims Unless the Statements Were “Not Pertinent to a Good-Faith Anticipated Litigation”

Sullivan & Cromwell LLP - February 26, 2015

On February 24, 2015, the Court of Appeals of New York resolved a split among New York’s intermediate appellate courts over whether attorneys can be liable for defamation for their statements prior to the commencement of a lawsuit.  The Court ruled that, unlike statements made by attorneys during the course of litigation – which are protected by an absolute privilege that applies irrespective of the attorney’s motive – pre-litigation statements are subject to a qualified privilege.  Under this qualified privilege, attorneys will not be subject to a claim for defamation for pre-suit statements they make and that they communicate to third parties if those statements are “pertinent to a good-faith anticipated litigation.”