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Business dispute turns on scope of litigation privilege after firm records two mortgages tied to divorce litigation
Summary
A plaintiff argued that two mortgages recorded against Newton property—one tied to New York divorce legal fees and one to separate Massachusetts litigation—fall outside litigation privilege; defendant’s counsel said the alleged statements and conduct arose from the divorce proceedings and are protected.
The Appeals Court heard arguments in a civil appeal by a Massachusetts plaintiff who seeks to hold Attorney Daniel Rivlin (and related actors) liable for conduct plaintiff says transcended protected litigation activity.
Jeremy Weltman, for the plaintiff, told the panel two mortgages recorded in May 2019 against property in Newton included a $100,000 mortgage tied to the New York divorce litigation and a second $350,000 mortgage that, he said, secured fees for Massachusetts litigation unrelated to the New York divorce. Weltman argued that the second mortgage and related conduct were not protected by the litigation privilege because they were not related to the underlying divorce proceeding.
Melissa Bailey, representing Daniel Rivlin, said the complaint’s core allegations concern Rivlin’s statements and actions during his representation of the plaintiff’s former son-in-law in the New York divorce, and argued the litigation privilege provides broad immunity for statements and acts that have some relation to the divorce litigation. Bailey said that, stripped to its essentials, the complaint alleges protected statements and the mere recording of a mortgage is not an actionable wrong by itself.
Counsel disputed whether the motion-to-dismiss record accepted the plaintiff’s allegations about the $350,000 mortgage and who orchestrated it. The panel questioned whether the complaint, read as a whole, sufficiently alleged that the defendant’s conduct reached beyond litigation-related advocacy and whether factual development was required before dismissal could be appropriate.
The court took the matter under advisement after argument.
