In a case which personally affected Mr. Bailey and the members of his firm, a disgruntled developer attempted to have Mr. Bailey abandon his client—the lone tenant in a building which the developer sought to turn into luxury condominiums—by suing Mr. Bailey and the firm for $25,000,000.00 in damages for alleged abuse of process and tortious interference with prospective economic interest. The suit claimed that Mr. Bailey had waged a media campaign in order to portray the developer in a bad light in order to force a favorable settlement for his client. However, the suit was frivolous from the onset and, accordingly, the  Bailey firm moved to dismiss the action and for damages under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes which allow for recovery when a suit is brought in a public forum involving a matter of public interest which has  little or no chance of success but is designed to chill free speech and to force the expenditure of unnecessary legal fees. The trial court dismissed the developer’s suit finding that the claims could not be sustained as a matter of law. However, the court declined to award relief under the anti-SLAPP statutes.

The firm appealed to the Appellate Division, First Department. There, the firm argued that a critical public policy issue was involved, namely, the ability to any attorney to zealously represent his  client without fear of reprisal from the adversary of his client. To that end, the firm demonstrated that the developer had filed a bad faith complaint which had no chance of success but was designed to chill Mr. Bailey’s right of free speech in defense of the harassment his client was facing, to force Mr. Bailey to forgo representation of his client in the face of a potentially ruinous lawsuit, to force Mr. Bailey to expend time and resources to defend against the suit, and to besmirch Mr. Bailey in the eyes of the public and the judiciary. The developer attempted to argue that the matter was a private one and therefore the statute would not apply.

In a first impression ruling involving the application of the anti-SLAPP statutes to matters of attorney conduct in defense of their client, the Appellate Division agreed with Bailey’s position that that the suit brought against him and the firm was a public, not, private matter.  It modified the trial court’s order to direct a remand to establish the costs and legal fees due to Mr. Bailey and the firm. In part, the court wrote that, “Plaintiff’s action involved public petition and participation, as defendant’s statements, which concern a landlord/tenant dispute between a large real estate developer and a sole holdout tenant constituted  and an exercise of free speech in connection with an issue of public interest, rather than a purely private matter.” In so ruling, the court reaffirmed the principle that attorney must be permitted to defend their clients without fear of reprisal.

Jeffrey R. Metz represented Mr. Bailey and the firm before the trial court and the Appellate Division.