NY’s Enhanced Anti-SLAPP Law May Help Defend 3rd-Party Claims against Attorneys

December 2, 2020 | Avigael C. Fyman | Professional Liability

New York has recently enacted a new anti-SLAPP (strategic lawsuits against public participation) statute, which provides additional remedies for the defense of frivolous lawsuits brought to deter the exercise of free speech and public petition rights. N.Y. Civil Right Law, §76-a(1)(a) now defines an “action involving public petition and participation” (i.e. a SLAPP action) broadly as “a claim based upon: (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”

The statute also alters the controlling standard and evidence subject to consideration on pre-answer motions to dismiss with regard to SLAPP actions, permitting the consideration of supporting and opposing affidavits on motions brought for failure to state a cause of action pursuant to CPLR §3211(a)(7), and shifting the burden on such motions so that a motion to dismiss in an action involving public petition and participation “shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law.” CPLR §3211(g)(1). In addition, the statute provides that all discovery is stayed pending the filing of a motion to dismiss in a case involving public petition or participation.

The statute heightens the standard for recovering damages in claims involving public petition and participation, requiring the plaintiff to show, in addition to all other necessary elements, that “by clear and convincing evidence . . . any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.” Civil Rights Law §76-a(2).

The statute also makes the award of costs and attorneys’ fees mandatory upon a demonstration that the action “was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law,” and provides that punitive damages may be recovered upon a determination that the action “was commenced or continued for the sole purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting the free exercise of speech, petition, or association rights.” Civil Right Law §70-a (emphasis added).

Although New York courts have not yet had the opportunity to construe this statute, looking to other states with longstanding, robust anti-SLAPP statutes shows the potential broad application of this statute to third-party claims against attorneys arising out of their conduct in litigation. For example, California, which has a longstanding anti-SLAPP statute, recognizes that the filing of a lawsuit is an exercise of one’s constitutional right of petition, and treats causes of action arising out of statements made in connection with or in preparation of litigation, or acts committed by attorneys in representing clients in litigation, as an appropriate subject of an anti-SLAPP motion. Wittenberg v. Bornstein, 50 Cal. App. 5th 303, 312-13 (2020). On this principle, California courts have applied the anti-SLAPP law to broad range of third-party claims against attorneys for litigation-related conduct, including claims for malicious prosecution, abuse of process, unfair business practices, defamation, intentional infliction of emotional distress, and fraud.

Other states have also applied anti-SLAPP laws to claims against attorneys for speech and petitioning activity in connection with litigation. See, e.g. Neff v. McGee, 346 Ga. App. 522 (Ga. 2018) (applying anti-SLAPP statute to dismiss defamation claim against attorney in connection with statements made related to claims brought by his client concerning an issue of public concern); Godfrey v. Marsh, No. 1781CV00823, 2018 Mass. Super. LEXIS 2445 (Mass. Super. 2018) (applying anti-SLAPP statute to dismiss intentional interference with contractual relations and intentional infliction of emotional distress claims brought against attorneys in connection with the submission of a petition for a land use restriction); and Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (claims against attorney for common-law and statutory fraud arising out of statements made on behalf of a client during a judicial proceeding were subject to dismissal under anti-SLAPP statute).

However, there are limits to this principle. Litigation-related conduct that is illegal as a matter of law, such as extortion, is not protected petitioning activity. See, e.g. Flatley v. Mauro, 39 Cal. 4th 299, 46 Cal. Rptr. 3d 606 (2006). Likewise, claims by clients against their attorneys for negligence or misconduct during litigation are not covered by anti-SLAPP statutes. As one California court has noted, “A malpractice claim focusing on an attorney’s incompetent handling of a previous lawsuit does not have the chilling effect on advocacy found in malicious prosecution, libel, and other claims typically covered by the anti-SLAPP statute. In a malpractice suit, the client is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client’s interests while doing so. Instead of chilling petitioning activity, the threat of malpractice encourages the attorney to petition competently and zealously. This is vastly different from a third party suing an attorney for petitioning activity, which clearly could have a chilling effect.” Kolar v. Donahue, McIntosh & Hammerton, 145 Cal. App. 4th 1532, 1540, 52 Cal. Rptr. 3d 712, 718 (2006). See also Deep Photonics Corp. v. LaChapelle, 282 Or. App. 533, 385 P.3d 1126 (2016) (derivative claims against attorney for corporation were not entitled to anti-SLAPP protection where gravamen of claim was not that attorney engaged in petitioning activity by advising corporation to commence litigation, but that attorney failed to competently represent corporation’s interests when he did so).

Moreover, claims arising out of federal law, such as civil RICO claims brought under 18 U.S.C. §1961 et seq., or civil rights claims brought under 42 U.S.C. §1983, are not be subject to dismissal on anti-SLAPP grounds, and in New York, anti-SLAPP remedies will not be available even against state law claims brought in federal court. While there is a circuit split on the issue, the Second Circuit has recently held that, by increasing a plaintiff’s burden to overcome pre-trial dismissal, anti-SLAPP laws conflict with the Federal Rules of Civil Procedure and thus are not applicable in federal courts, even with regard to state law causes of action. La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020).

Attorneys faced with frivolous claims and their insurers may be able to use the anti-SLAPP statute in an appropriate case to obtain a faster resolution of matters, avoid intrusive discovery, and recover their fees and costs.

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