Appeals court says only qualified privilege covered lawyer's demand letter, but nixes libel case
Only a qualified privilege, rather than absolute privilege, applied to demand letters sent by a lawyer on behalf of a corporate client to a former engineering supervisor and his new employer, New York’s top court decided Tuesday.
However, the libel and tortious interference case brought by the ex-employee against the attorney and law firm that sent the letters was nonetheless properly dismissed, the Court of Appeals said. That’s because the letters were protected by a qualified privilege. Findlaw provides a copy of the opinion.
The letters, which demanded that Phillip Khalil and his new employer stop using confidential and proprietary material he allegedly took without authorization before exiting his job at Front Inc., were sent in conjunction with anticipated litigation, the court emphasized.
“Attorneys often send cease and desist letters to avoid litigation,” wrote Judge Sheila Abdus-Salaam in the opinion. “Communication during this pre-litigation phase should be encouraged and not chilled by the possibility of being the basis for a defamation suit.”
When they sent the demand letters on behalf of Front, law firm Meister Seelig & Fein and its attorney, Jeffrey Kimmel, “had a good-faith basis to anticipate litigation and the statements in the letters were pertinent to that anticipated litigation,” the opinion explains. “Therefore, the letters at issue were properly found to be subject to a privilege; however, rather than the absolute privilege applied by the courts below, a qualified privilege applied because they were written prior to litigation.”
The court said in a footnote that “attorneys should exercise caution when corresponding with unrepresented potential parties who may be particularly susceptible to harassment and unequipped to respond properly even to appropriate communications from an attorney.”
Hat tip: Associated Press
