It Makes A Difference to Whom You Talk about Legal Malpractice
Accusing an attorney of legal malpractice may have dangerous consequences, but, as in all things, the details matter. To whom you make the accusation is very important. Make it to just anyone, and there might be a good defamation law suit; make it to another concerned attorney and it could be permissible.
In Sklover v Sack 2013 NY Slip Op 00323 Decided on January 23, 2013 Appellate Division, Second Department, plaintiff's defamation claim fails because the words were communicated to another concerned party. "Even if the offending statements are actionable assertions of fact rather than nonactionable expressions of opinion (see generally Mann v Abel, 10 NY3d 271, 276, cert denied 555 US 1170), the statements are protected by the absolute privilege for statements made in a judicial proceeding. A statement made by counsel in the course of a judicial proceeding, even if made with malice or bad faith, "is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation" (Martirano v Frost, 25 NY2d 505, 507; see Rabiea v Stein, 69 AD3d 700, 700; Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163, 171). The statements at issue were made among counsel in a pending judicial proceeding, and were pertinent to a dispute over the proceeds of the settlement in the federal action (see Rabiea v Stein, 69 AD3d at 701; Sexter & Warmflash, P.C. v Margrabe, 38 AD3d at 175-176; Impallomeni v Meiselman, Farber, Packman & Eberz, 272 AD2d 579, 580; cf. Ingber v Mallilo, 52 AD3d 569, 570). Furthermore, the statements were pertinent to the settlement of a prospective legal malpractice litigation (see Vodopia v Ziff-Davis Publ. Co., 243 AD2d 368; Lieberman v Hoffman, 239 AD2d 273). Accordingly, the statements are protected by an absolute privilege, and the Supreme Court should have denied the plaintiff's motion and granted the defendants' cross motion for summary judgment dismissing the complaint. "