Topless photographs, sexual harassment, "heavy-handed" negotiations, emotional distress to highly pregnant women – it all seems to be out of a TV show.  Nevertheless, these are the elements of Abrams v. Pacile, Supreme Court, New York County, Justice Tolub.  In this decision, printed in the NYLJ today, and soon to be on the Court’s website, we see brothers in the financial industry, their workers, their wives, topless photos on the honeymoon, entrustment of the photos to assistants for printing at Duane Reede, and the fallout in dueling suits.  By the way, how could a guy send his assistant out with topless photos of his wife, and ask her to go to Duane Reede to get prints made?  Was he expecting his assistant or the clerk there to make them?  What reaction did he expect?

This blog is devoted to attorney behavior and legal malpractice, so we will detour there.

"Claims Against Mr. Wigdor and TWG

Under New York law, attorneys are afforded immunity where their conduct arises out of the professional representation of their clients.

There is a general principle embodied in the law of the State of New York that attorneys should be free to advise their clients without fear of liability [to] third parties. However, the mere fact one is an attorney acting in a professional capacity does not make him absolutely immune from responsibility for his wrongful acts.

An attorney may be held personally liable to a third party who sustains an injury in consequence of his wrongful act of improper exercise of authority, where the attorney has been guilty of fraud, collusion or of a malicious or tortious act.

Beatie v. DeLong,164 AD2d 104, 108 [1st Dept 1990].

Here, Plaintiff has not sufficiently alleged, let alone submitted any evidence, that Mr. Wigdor or his firm acted with either malice or bad faith or that they colluded with Danielle and Cristina in some illegal manner. The "settlement" negotiations of May 2008, as heavy handed as they were, provide no basis for a recovery. Indeed, there is nothing to indicate from the Plaintiff herself that she was ever aware of the letters Mr. Wigdor sent. In the absence of fraud, collusion, malice or bad faith, Mr. Wigdor and TWG are immunized from liability under the shield afforded attorneys in advising their clients, even when such advice is erroneous. The Complaint as to Mr. Wigdor and TWG is dismissed(id.)."

"Rule 1.16(a)(1) provides:

(A) A lawyer shall not accept employment of behalf of a person if the lawyer knows or reasonably should know that such person wishes to:

(1) bring a legal action, conduct a defense, or assert a position in a matter, or otherwise have steps taken for such person, merely for the purpose of harassing or maliciously injuring any person;

It is clear to the Court that the Complaint as to Ms. Culicea and Mr. Wigdor has no basis in law and fact and could only have been brought to harass Ms. Culicea and the Wigdor law firm. As such, counsel’s actions are sanctionable."