First Department Addresses Scope of the Judicial Proceedings Privilege

On November 12, 2013, the First Department issued a decision in Hadar v. Pierce, 2013 NY Slip Op. 07414, dismissing claims based on, among things, the judicial proceedings privilege.

The First Department noted that "[t]he judicial proceedings privilege applies to causes of action other than defamation. However, it does not apply to" allegations of "malpractice, because the gravamen of the malpractice claim is that defendants failed to exercise the skill, prudence, diligence, and care expected of members of the legal profession." (Internal quotations and citations omitted). Similarly, "[t]he judicial proceedings privilege does not apply to" allegations of "malicious prosecution, because that cause of action, by definition, involves a prior proceeding." (Internal quotations and citations omitted).

Litigators are well advised to be aware of both the scope and the limitations of the judicial proceedings privilege so that they can avoid the unhappy occasion of becoming litigants rather than advocates.