New York State Bar Association - Advocate Magazine
By Neville L. Johnson and Douglas L. Johnson
Much of an attorney's job is communication. Attorneys may talk to the press about a case on which they are working, write letters to other parties, or draft memoranda for the courts. If a lawyer is not careful, these statements could subject him, her, or their to civil liability or judicial sanctions, “litigation privilege” notwithstanding. This article explores potential liability for attorney communications under both New York and California laws.
I. New York Law
Aguirre v. Best Card Agency, Inc.
In Aguirre v. Best Care Agency, Inc.,1 Aguirre, a Filipino immigrant, accused her H1-B visa sponsors, Best Care, of exploiting her for cheap labor under threat of withdrawing their sponsorship.2 Afraid of losing her visa, Aguirre “felt compelled to agree to [Best Care's] proposals” regarding her assigned duties and pay, “and continued to work for them at a much lesser compensation rate than required by law.”3 After years of exploitation, it was revealed that Aguirre's sponsor was not even capable of paying her the amount stated in her work petition, leading the United States Citizenship and Immigration Services to reject her green card application.4 At this point, the Department of Homeland Security served Aguirre a Notice to Appear in Immigration Court, which signified the beginning of removal proceedings against her.5
At this point, Aguirre began to tell her story to the public. In an article published by the Filipino Times, Aguirre blamed Best Care for her predicament. She then sued Best Care and its proprietors, claiming in her complaint that Best Care “promised but failed to sponsor her green card application, effectively enslaving her, paying her far less than promised for long hours of work, and keeping her in ‘silence, fear and obedience through the defendants' constant veiled threats and intimidate[ion] that she might be deported.'”6 Another article quoted Aguirre's attorney as saying that the defendants “knew they did not have the financial capacity to sponsor Plaintiff but misrepresented their financial capacity to Plaintiff, who became a ‘one woman office staffing agency for them.'”7
The defendants countersued, alleging that quotations accusing them of “human trafficking” and fraudulent inducement were inaccurate and defamatory.8 The court rejected the defendants' claim on the grounds of litigation privilege, which “offers a shield to one who publishes libelous statements in a pleading or in open court for the purpose of protecting litigants' zeal in furthering their causes.”9 This privilege extends to out of court statements that “constitute substantially accurate descriptions and characterizations of the Complaint.”10 Here, the statements the defendants cited as defamatory were either directly quoted from the complaint or made by Aguirre and her attorney that did “not suggest misconduct more serious than that alleged in the Complaint.”11 Specifically, because Aguirre had sued for violation of The Victims of Trafficking and Violence Protection Act (TVPRA), statements accusing the defendants of human trafficking were privileged.12
Officemax Inc. v. Cinotti
In Officemax Inc. v. Cinotti,13 an employee of Officemax, Cinotti, left for a competitor and solicited his former Officemax customers for their business in violation of a settlement agreement between Officemax and the competitor. Officemax sent both Cinotti and his new employer a letter notifying them of this breach, then sued them for breach of the duty of loyalty and violation of the Computer Fraud and Abuse Act.14 Cinotti filed a counterclaim for defamation concerning the letter from Officemax, arguing that because it did not relate to the then-still-forthcoming lawsuit between Officemax and Cinotti, it was not protected by litigation privilege.15 The court rejected Cinotti's argument, holding that litigation privilege extends to communications pertinent to any litigation, no matter whether or not the parties have actually commenced litigation.16 Here, the letter was pertinent to previous litigation between Officemax and Cinotti's new employer, because it alleged a violation of the settlement agreement that resulted from that litigation.17 Furthermore, the letter was pertinent to possible litigation between the parties, because Cinotti's violation of the terms of the settlement agreement gave rise to Officemax's lawsuit.
Polin v. Kellwood Co.
Polin v. Kellwood Co. (Polin)18 serves as an example of the unique perils of arbitration when it comes to sanctionable attorney communications. The underlying matter concerned a corporate president suing his ex-employer for wrongful termination.19 After his suit endede up in arbitration, his attorney complained in a letter to the American Arbitration Association that the neutrality of their assigned arbitrator had been compromised by the defendants making payments directly to said arbitrator (rather than through the Association), and that “defendants would withhold any further payments to the neutral arbitrator as a means of coercing him into desisting from granting such additional time necessary to complete the arbitration.”20 When the arbitration panel convened a special hearing to explore the factual basis for this letter, the plaintiff's attorney refused to answer the panel's questions “[o]n constitutional grounds as well as jurisdictional grounds,” leading the arbitration panel to sanction him personally arbitration, his attorney complained in a letter to the American Arbitration Association that the neutrality of their assigned arbitrator had been compromised by the defendants making payments directly to said arbitrator (rather than through the Association), and that “defendants would withhold any further payments to the neutral arbitrator as a means of coercing him into desisting from granting such additional time necessary to complete the arbitration.”20 When the arbitration panel convened a special hearing to explore the factual basis for this letter, the plaintiff's attorney refused to answer the panel's questions “[o]n constitutional grounds as well as jurisdictional grounds,” leading the arbitration panel to sanction him personally for one-half of the arbitration costs.21
The attorney attempted to have these sanctions reversed in federal court as violative of New York's public policy against punitive damages in arbitration. However, the court found that the parties had contracted around this prohibition by permitting the arbitrators to award “any remedy or relief that the arbitrator deems just and equitable, including any remedy or relief that would have been available to the parties had the matter been heard in court.”22 Thus, because courts have the power to sanction attorneys appearing before them for improper conduct, so too did the arbitrator.23
Lipin v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa.
Lipin v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. (Lipin)24 is a sequel to Polin, featuring the same plaintiff's attorney suing the defense attorneys for defamation and injurious falsehood arising out of a memo they filed in the Polin proceedings to confirm the arbitration sanctions.25 The memo highlighted a continuous pattern of deception by the plaintiff's attorney, including stealing and copying documents from the other side's file.26 The court held that this memo was protected by the litigation privilege, because conduct in the earlier proceedings was “pertinent” to the defense attorneys' request to uphold the Polin arbitration sanctions.27 The court empahsized that “the concept of pertinent material is ‘extremely broad' and ‘embraces anything that may possibly or plausibly be relevant or pertinent, with the barest rationality, divorced from any palpable or pragmatic degree of probability.'28
Here, demonstrating that a party had a propensity to engage in unethical conduct if left undeterred was reasonably related to the propriety of arbitration sanctions over precisely such conduct.
Giuffre v. Dershowitz
Giuffre v. Dershowitz29 provides a new test case for the litigation privilege's expanse and features famed attorney Alan Dershowitz as the defendant. Dershowitz had repeatedly called the plaintiff a liar and extortionist for accusing him of statutory rape in the aftermath of his defense of convicted pedophile Jeffrey Epstein. The complaint discusses a prior settlement with Dershowitz concerning his accusations, made through interviews in national media outlets, that the plaintiff's attorneys had engaged in unethical behavior with respect to one of Epstein's victims. Dershowitz's public statements on the matter included “challenging them to sue me for defamation.” The Giuffre complaint accordingly states: “Mr. Dershowitz now has what he claims he has been looking for.” The case is currently in its nascent stage, but should certainly be followed by all attorneys.
II. California Law
Flatley v. Mauro
In Flatley v. Mauro (Flatley),30 an attorney sent a demand letter on behalf of a client to a famed dancer, accusing him of rape.31 The letter warned that if a monetary settlement was not urged, the rape allegations would be revealed in court (and therefore to the media), and various other matters would thereby be “exposed.”32 The letter threatened outsized punitive damages, made abun-dant use of bold and capitalized fonts, and imposed a non-negotiable timeline of 28 days to reach a settlement.33 The attorney thereafter badgered the dancer's counsel with numerous phone calls, threatening to “go public” with the story and “ruin” the dancer unless he agreed to pay the client and his attorney “seven figures.”34
Instead, the dancer filed a civil extortion suit against the attorney, who responded by bringing a motion to strike the complaint under California's anti-SLAPP statute (Code Civ. Proc. Section 425.16), arguing that the dancer was attempting to hold him liable for constitutionally protected speech (i.e., settlement negotiations made in contemplation of litigation). The California Supreme Court denied the anti-SLAPP motion on the basis that the attorney's letter constituted criminal extortion as a matter of law.35 The threats to “go public” with the accusations were coupled with an immediate demand for a seven-figure sum, and were further compounded by the insinuation that the dancer could be reported to tax and immigration authorities for conduct entirely unrelated to the client's claims.36
Before the case was completed, the attorney resigned as a member of the Illinois Bar.
Malin v. Singer
In Malin v. Singer (Malin),37 an attorney sent a letter to a restaurant and nightclub owner demanding the return of allegedly embezzled funds to the owner's business partner. The attorney threatened to file a lawsuit alleging not just embezzlement, but use of the funds to “arrange sexual liaisons with older men such as ‘Uncle Jerry', Judge —–, a/ka ‘Dad'…, and many others.”38 The case initially played out much like Flatley—the owner sued for civil extortion, the attorney filed an anti-SLAPP motion in response, and the trial court found the letter to be criminal extortion as a matter of law.39 On appeal, however, the court distinguished the two cases on the grounds that “Singer's demand letter did not expressly threaten to disclose Malin's alleged wrongdoings to a prosecuting agency or the public at large.”40 The salacious details about the arranged sexual liaisons was held not to be extortionate because the activity was “inextricably tied” to the embezzlement complained of by the business partner.41
Though the attorney in Malin evaded liability and was awarded $323,689 in attorney's fees following his successful anti-SLAPP motion, the distinctions drawn by the Court of Appeals demonstrate that demand letters require a careful threading of the needle in order to remain on the right side of zealous advocacy. Not only can excessive demands expose the drafting party to liability, being named in a suit over such demands likely creates a potential or actual conflict of interest between the lawyer and client, which could require the lawyer to withdraw from representation.
Mendoza v. Hamzeh
In Mendoza v. Hamzeh (Mendoza),42 an attorney demanded that the manager of a print and copy shop repay $75,000 to the shop's owner, lest he be reported to the California Attorney General, the Los Angeles District Attorney, and the Internal Revenue Service regarding tax fraud. The court ruled the attorney's letter to be civil extortion, as the demand of $75,000 was directly coupled with a threat to report a crime, and demanding money in exchange for silence with respect to a reportable crime cannot be transmuted to something other than extortion merely because it is accompanied by a threat of garden-variety civil litigation (here, for fraud and breach of contract).43
The Mendoza court further noted that such conduct will subject an attorney to State Bar discipline, as the Rules of Professional Conduct “specifically prohibit attorneys from ‘threaten[ing] to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.'”44 New York similarly forbids lawyers from threatening criminal prosecution “solely to obtain an advantage in a civil matter.”45 Notably, Rule 7-105(a) has been interpreted in New York to prohibit lawyers from even mentioning an adversary's potential criminal liability to obtain a litigation advantage.46
Dickinson v. Cosby
Dickinson v. Cosby (Dickinson)47 involved an attorney—the same one from Malin—sending a demand letter to a television network that planned to broadcast an interview with one of Bill Cosby's accusers, claiming that the accuser's story was “fabricated and is an outrageous defamatory lie,” and explicitly threatening litigation if the broadcast accured.48 Similar letters were sent to several other media outlets contemplating similar coverage of the matter.49 The accuser responded by suing Cosby and his attorney for defamation, arguing that the letters' assertion that the accuser made up her allegations was false and damaging to her reputation.50
Once again, the attorney brought an anti-SLAPP motion to strike the complaint as futile in the face of litigation privilege, the trial court denied the motion, and the appellate court reversed. Originally, the court held that litigation privilege did not apply to the letters because they were not written in good faith contemplation of a lawsuit, but were merely intended to intimidate media outlets that had yet to run relevant segments, and no litigation was filed when the letters' demands were not met.51 Back at the trail court, the tribunal found an independent reason for why the lawsuit could not succeed against the attorney: the plaintiff was a public figure and could not satisfy the constitutional malice standard for defamation under New York Times v. Sullivan.52 A near-identical result was reached in McKee v Cosby,53 prompting Justice Clarence Thomas to muse on whether the standards of New York Times v. Sullivan should be reexamined.54
As for Dickinson, the parties ultimately settled with a “walkaway”: the accuser did not appeal, and the attorney waived his right to collect fees under California's anti- SLAPP statute. Notably, Cosby did not enjoy the same level of success in escaping from the lawsuit, and his appellate challenges continue. His attorney was also forced to withdraw from the action in recognition of the ethical issues raised in the discussion of Malin, supra.
Rothman v. Jackson
Rothman v. Jackson (Rothman)55 serves as a forerunner to the previously discussed cases. A defamation suit was filed against Michael Jackson, his companies, his lawyers, and his private investigator over assertions during a press conference that his alleged molestation victims and their counsel had made false accusations in order to extort money from Jackson. The defendants argued that litigation privilege protected the statements as made in anticipation of a possible criminal prosecution against Jackson.56 The court rejected the argument, holding that litigation privilege applies to statements that have a “functional connection” with potential litigation, not merely a connection to the subject matter of litigation.57 Here, the statements were made to members of the press, who had “no legitimate connection with any litigation that could be anticipated between” the accusers' counsel and the defendants.58
The court also dispensed with the notion that litigation privilege should be extended based on societal expectations of celebrity litigants' typical public relations strategies. The court pointedly observed:
[W]e are frankly astonished by the contention made by [Jackson attorney Bertram] Fields that celebrities and their lawyers must litigate their cases in the press because the public expects it. Fields argues that, because of such public expectations, ‘media attention becomes part of the forum of litigation .,' and to deny celebrity litigants protection for statements made in this ‘forum' would contravene the policies of the litigation privilege. We expressly reject this argument.59
Thus, Rothman made clear that litigation privilege has no sliding scale between public and private figures. The court's most salient guidance came in the form of a simple, pithy maxim: “attorneys who wish to litigate their cases in the press do so at their own risk.”60
III. Rules of Professional Conduct
Recognizing that trial publicity remains invariable in a hyperconnected age, various state bars have imple- mented ethical rules—typically tracking the model rules promulgated by the American Bar Association—regarding how such publicity may be conducted. Rules 3.6 of both the New York and California Rules of Professional Conduct, for example, prohibits lawyers from making extrajudicial statements that they know (or reasonably should know) will (i) be disseminated by means of public communication and (ii) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Both rules provide representative lists of permissible statements under this standard, while New York additionally provides a representative list of impermissible statements. These lists and governing standards should be carefully studied by all attorneys considering turning to the press for assistance in their matters.
The foregoing cases and professional rules counsel a conservative approach to any out-of-court communications regarding litigation matters, whether currently pending or not. Attorneys must take care to ensure that their statements on behalf of clients are functionally related to legitimate legal claims that they truly intend to pursue. They must also carefully weigh the possibility of their clients being sued even if they personally are immune, which raises the specter of malpractice claims. While provocative gestures and strong-arm tactics may momentarily impress clients, they can quickly become significant liabilities that subsume even meritorious cases. Attorneys must be well-versed in all relevant authority concerning the limits of extrajudicial advocacy, lest their big mouths get them in big trouble.
- Aguirre v. Best Care Agency, Inc., 961 F. Supp. 2d 427 (E.D.N.Y. 2013).
- Id. at 432-44.
- Id. at 437.
- Id. at 437-38.
- Id. at 440-41.
- Id. at 441.
- Id. at 459.
- Id. at 456.
- Id. at 459.
- Id. at 460.
- Id. at 459.
- Officemax Inc. v. Cinotti, 966 F. Supp. 2d 74 (E.D.N.Y. 2013).
- Id. at 76-77.
- Id. at 77.
- Id. at 80.
- Id. at 81.
- Polin v. Kellwood Co., 103 F. Supp. 2d 238 (S.D.N.Y. 2000). 19. Id. at 241.
- Id. at 246 (emphasis in original).
- Id. at 247.
- Id. at 267-68 (quoting National Rules for the Resolution of Employment Disputes Rule 32(c) (American Arbitration Association 1997)).
- Polin, 103 F. Supp. 2d at 248.
- Lipin v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 202 F. Supp. 2d 126,
- 130 (S.D.N.Y. 2002). 25. Id. at 137.
- Id. at 138. 27. Id.
- Id. at 137.
- Giuffre v. Dershowitz, Case No. 1:19-CV-03377 (S.D.N.Y. Apr. 16,
- Flatley v. Mauro, 39 Cal. 4th 299 (2006).
- Id. at 308.
- Id. at 309.
- Id. at 308-09.
- Id. at 311.
- Id. at 330.
- Malin v. Singer, 217 Cal. App. 4th 1283 (2013).
- Id. at 1289.
- Id. at 1291.
- Id. at 1298.
- Id. at 1299.
- Mendoza v. Hamzeh, 215 Cal. App. 4th 799 (2013).
- Id. at 805-06.
- Id. at 805 (quoting former Rules of Prof. Conduct, rule 5-100(A)).
- New York Disciplinary Rule 7-105(a).
- See Heng Chan v. Sung Yue Tung Corp., 2007 U.S. Dist. LEXIS 33883, at *22 (S.D.N.Y. May 4, 2007) (noting that “the mere mention of potential criminal liability can constitute a threat under this provision”).
- Dickinson v. Cosby, 17 Cal. App. 5th 655 (2017).
- Id. at 662.
- Id. at 655.
- Id. at 684.
- New York Times v. Sullivan, 376 U.S. 254 (1984).
- McKee v Cosby, 874 F.3d 54 (1st Cir. 2017), cert denied, 139 S. Ct. 675 (2019).
- McKee v. Cosby, 139 S. Ct. 675, 680 (2019).
- Rothman v. Jackson, 49 Cal. App 4th 1134 (1996).
- Id. at 1145.
- Id. at 1146.
- Id. at 1156.
- Id. at 1149.
- Id. at 1148.
Neville Johnsin and Douglas Johnson are partners at Johnson & Johnson in Beverly Hills, CA, focusing on media, entertainment, business and class action litigation. Daniel Lifschitz, a litigation associate at Johnson & Johnson, and law clerk Andrew Keyes, a student at Loyola Law School, Los Angeles, assisted in writing the article.
Reprinted with permission from: Entertainment, Arts and Sports Law Journal, Fall 2019, Vol. 30, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.