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Engel v. CBS, Inc. [Certification] |
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Page 3 of 3
The New York Court of Appeals has not clarified whether, and to what extent, interference with person or property, other than through provisional remedies, might satisfy the special injury requirement. Language in our cases and cases from lower courts in New York indicates that special injury may be proven even in the absence of a provisional remedy. See, e.g., O'Brien, 101 F.3d at 1484 ("there [must be] a showing of some interference with plaintiff's person or property by the use of . . . provisional remedies . . . or other burden imposed on plaintiff beyond the ordinary burden of defending a law suit") (internal citations omitted, emphasis added); Groat v. Town Bd. of Glenville, 73 A.D.2d 426, 429-30, 426 N.Y.S.2d 339, 341 (App. Div. 1980) (plaintiff must allege "the obtaining of a provisional remedy or other interference with his person or property") (emphasis added); Sachs v. Weinstein, 208 A.D. 360, 365, 203 N.Y.S. 449, 453 (App. Div. 1924) (requiring interference with person or property "as by attachment, arrest, or some other provisional remedy") (emphasis added); Watson v. City of New York, 57 Misc.2d 542, 545, 293 N.Y.S.2d 348, 353 (Sup. Ct. 1968) (requiring "interference with person or property . . . akin to those flowing from . . . the use of provisional remedies in civil actions") (emphasis added). See also Chrysler Corp., 540 F. Supp. at 720-21 (noting that cases in New York and Michigan (where special injury is also required) use "nonexclusive language when describing" what constitutes special injury, so that "the interference requirement can have some flexibility"). Thus in Groat, the requirement was met where the malicious prosecution plaintiff was "suspended without pay, dismissed from the [police] force and, at least temporarily, disgraced in the department and in the community," as a result of the underlying civil action, even though no provisional remedy was had against the plaintiff. 73 A.D.2d at 430, 426 N.Y.S.2d at 341; see also Fulton v. Ingalls, 165 A.D. 323, 325-26, 151 N.Y.S. 130, 131-32 (App. Div. 1914) (requirement of interference with person or property met where defendants responsible for bringing quasi-criminal charges against plaintiff police officer). In Watson, the plaintiff was allowed to pursue an action based on a malicious paternity proceeding. The court found that "[a]lthough neither imprisonment nor a fine is authorized" and no provisional remedy had been imposed, a paternity proceeding "does result in an order of filiation and a direction for support, with the sanction of imprisonment if support is not provided." 57 Misc.2d at 546, 293 N.Y.S.2d at 354.
On the other hand, there is language in several appellate division cases to the effect that a provisional remedy is indeed a prerequisite to an action for malicious prosecution based on a civil lawsuit. See, e.g., Venezia v. Sirulnick, 213 A.D.2d 629, 630, 624 N.Y.S.2d 62, 63 (App. Div. 1995) ("mere service of process without further interference from some provisional remedy does not rise to the level of malicious prosecution"); Otiniano v. Magier, 181 A.D.2d 438, 439, 580 N.Y.S.2d 759, 760 (App. Div. 1992) (no action may lie because plaintiff "was not subjected to interference from a provisional remedy"); Sokol v. Sofokles, 136 A.D.2d 535, 536, 523 N.Y.S.2d 155, 157 (App. Div. 1988) (requiring "interference from some provisional remedy"); Brand Mfg. Corp. v. Olit Assocs., 132 A.D.2d 684, 685, 518 N.Y.S.2d 161, 162 (App. Div. 1987) (same); Vevaina v. Paccione, 125 A.D.2d 392, 393, 509 N.Y.S.2d 113, 114 (App. Div. 1986) (same); Ellman v. McCarty, 70 A.D.2d 150, 154, 420 N.Y.S.2d 237, 241 (App. Div. 1979) (same); cf. 59 N.Y. Jur. 2d False Imprisonment and Malicious Prosecution §§ 48, 51, 125 (1987). However, none of these cases had occasion to directly consider whether some interference with person or property akin to, but other than, a provisional remedy, might satisfy the special injury requirement. For example, the courts in Otiniano, 181 A.D.2d at 439, 580 N.Y.S.2d at 760, and Sokol, 136 A.D.2d at 536, 523 N.Y.S.2d at 157, concluded that the underlying actions in those cases were not resolved in the plaintiffs' favor, and stated without analysis that there was also no interference with person or property in the form of a provisional remedy. The district court took the view that the language in these cases "is best interpreted as shorthand for the rule that interference with plaintiff's person or property is required and that such interference is usually the result of a provisional remedy." Engel v. CBS Inc., 961 F. Supp. at 663.
The appellees maintain that the injuries alleged by Engel are insufficient as a matter of law to meet Engel's burden of demonstrating special injury--interference with his person or property beyond the ordinary burden of defending a lawsuit. See Molinoff v. Sassower, 99 A.D.2d 528, 528-29, 471 N.Y.S.2d 312, 313-14 (App. Div. 1984); Campion Funeral Home, 166 A.D.2d at 37, 569 N.Y.S.2d at 521; Chrysler Corp., 540 F. Supp. at 721-23; but see J.J. Theatres, Inc. v. V.R.O.K. Co., 96 N.Y.S.2d 271, 273 (Sup. Ct. 1950) (harm to plaintiff's business caused by lawsuit can constitute special injury; New England Tire & Sales Co. v. Kelly-Springfield Tire Co., 123 Misc. 954, 954-55, 207 N.Y.S. 95, 96 (Sup. Ct. 1924) (same).
However, Engel alleges that he suffered injury beyond that ordinarily associated with defending a meritless lawsuit. He argues that the second action directly interfered with his ability to zealously and vigorously represent his client and that this interference satisfies the special injury requirement. Engel testified that the second action created a conflict of interest between him and his client Scholz, and that CBS brought the action for that purpose; that by deposing him, CBS acquired information it would not have otherwise secured, including information about Engel's trial strategy in the first action; that his defense of the second action involved theories that contradicted those advanced in the first action; and that the foregoing conflicts negatively impacted his representation of Scholz.
The district court concluded that Engel could not satisfy the special injury requirement. It relied on the fact that Engel continued to represent Scholz, that Engel's client was successful in his action against CBS, and that Engel was unable to say specifically whether he was ever forced to disclose information harmful to Scholz's position in the first action. See Engel v. CBS, Inc., 961 F. Supp. at 664. The district court noted that "very few cases have found the necessary interference in the absence of a provisional remedy," id., and that none of the cases cited by Engel had held that purposeful interference with an attorney's representation of his client satisfied the special injury requirement. Id. at 665. The court declined to decide whether such interference could ever satisfy the special injury requirement, but concluded that, because Engel was ultimately successful in the first action, his action for malicious prosecution under New York law must fail. Id.
The question whether purposeful interference with an attorney's representation of a client by an adversary can satisfy the special injury requirement is unsettled in New York. In the few cases where New York's lower courts have allowed a malicious prosecution action based on a civil law suit to proceed despite the absence of a provisional remedy, the underlying action was either quasi-criminal, involving the disgrace and punishment associated with criminal proceedings, e.g., Groat, 73 A.D.2d at 429-30, 426 N.Y.S.2d at 341; Watson, 57 Misc.2d at 545-46, 293 N.Y.S.2d at 353-54, or the underlying action involved the functional equivalent of a provisional remedy, such as the impoundment of the plaintiff's property, see Sachs, 208 A.D. at 365, 203 N.Y.S. at 453. The present action does not fit neatly into either category.
The ability to zealously and vigorously represent one's client is central to the attorney's profession. The relationship between the attorney and the client is of the utmost importance, and the attorney's representation of the client ought to be protected from undue and improper interference. Cf., e.g., People v. Radtke, 155 Misc.2d 21, 25-26, 588 N.Y.S.2d 69, 73 (Sup. Ct. 1992) (discussing "sanctity of the attorney-client relationship" as a "foundation [principle] of our democratic society"); Ullrich v. Hearst Corp., 809 F. Supp. 229, 236 (S.D.N.Y. 1992) (preventing employer's long-time attorney from representing employees in action against employer, because courts must "protect[] the confidential relationship between client and attorney; if clients withheld information from their lawyers out of fear [that subsequently the information might be used against them], the ability of the legal profession to render valuable advice to its clients would suffer"). Because the ability to zealously represent one's client with undivided loyalty is the cornerstone of the legal profession, a powerful argument can be made that interference with that ability in the manner alleged by Engel constitutes sufficient interference with person or property to meet the special injury requirement for a malicious prosecution claim in New York.
We believe the appropriate course is to certify the issue in this case to the New York Court of Appeals, since "[n]o [New York] court has specified exactly what interference with person or property, other than a provisional remedy, might be sufficient to meet the special injury requirement," 961 F. Supp. at 664, and the New York Court of Appeals has not definitively pronounced whether, absent a provisional remedy, an attorney who is sued for the purpose of interfering with his representation of his client may meet the special injury requirement. Accordingly, we certify to the New York Court of Appeals the following question:
Whether an attorney, sued by his client's adversary for the purpose of interfering with the attorney's zealous representation of his client, and whose representation is actually undermined by the suit, may satisfy the required element of special injury in an action for malicious prosecution of a civil lawsuit under New York law where no provisional remedy is had against him.
We think this issue is appropriate for resolution by the New York Court of Appeals because of the lack of authoritative guidance on an issue with significant impact on New York tort law. A determination of this issue by the Court of Appeals will provide this and other courts with a clear standard to apply in actions for malicious prosecution under New York law.
The foregoing question is hereby certified to the Court of Appeals of the State of New York as ordered by the United States Court of Appeals for the Second Circuit.
Dated at New York, New York, this day of , 1998.
FOR THE COURT:
__________________________________
George Lange III, Clerk
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