California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JANUARY 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - January 2000
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News Briefs
Former Unruh aide appointed to serve on State Bar board
Ardaiz, O'Leary named jurists of the year for '99
Judicial Administration fellowships
Public law section online library
Board meets Feb. 4-5
51.2 percent pass July '99 bar exam
Board hires search firm for new bar chief
Litigation section offers MCLE week in legal London
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Trials Digest
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From the President - Reciprocity reform: The future is now
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Opinion
For most Americans, our system is a failure
Ethics 2000: On target, or lost in space
Letters to the Editor
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Public Comment
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MCLE Self-Study
Of Counsel: Avoiding Conflicts
Self-Assessment Test
MCLE Calendar of Events
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Important Information About Your 2000 Membership Fee
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You Need to Know
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Appointments
Apply to serve on a bar committee
Bar seeks applicants for ABA delegates
Judge evaluation positions open
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Discipline
Ethics Byte - Warding off the foul tort in a new year
Bankruptcy attorney disbarred after abandoning clients
Attorney Discipline

ETHICS BYTE

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Warding off the foul tort in a new year
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My new year wish for you is that you never see a malpractice claim or a State Bar complaint and that all your clients pay their fees. However, recent malicious prosecution cases cause me to think I should include an incantation barring any visitation from that foul tort as well.

Fundamentally, in order for you to prevail, a plaintiff must prove: favorable termination of the original litigation, absence of probable cause, and actual malice. When this claim is asserted against a lawyer, these rudimentary criteria metastasize into convoluted and byzantine claims. Theoretically, the court is balancing parties’ freedom from harassing litigation and the right of claim-ants to pursue their rights absent fear of never-ending litigation.

Diane KarpmanAdverse clients do not understand your obligations of loyalty and competency in the context of litigation. They may interpret your enthusiasm as a type of evil intent directed at them, personally. Therefore, special protection is afforded to lawyers acting in a representative capacity. We are presumed to be following the law in accordance with our oaths and duties. (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App. 4th 43, 60)

“Compliance with those obligations, by definition, should comport with any test of probable cause.” (Legal Malpractice, Mallen, 4th Edition, Volume I, page 438). Probable cause is the most important element, since if probable cause exists, “the malicious prosecution action fails.” (Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, a must see case). Probable cause is established by an objective standard, based upon law and facts reasonably known to the lawyer at the time of prosecution, that the client had a “legally tenable” claim. Importantly, you can be wrong or make a mistake in the investigation of the facts or the law, because the standard is not negligence. However, the caliber of the investigation can impact upon the existence of malice, which is subjective. Also, “denial of summary judgment [in the underlying case] is a sound indicator of probable cause . . .” Roberts v. Sentry Life Ins. (Nov. 22, 1999, 2nd Dist.) 1999 Cal.App. Lexis 1011.

As long as you are following the Rules, your case could be weak, with marginal likelihood of success, or with questionable merit. This is often how changes in the law occur. However, you cannot pursue patently frivolous, unlawful or meritless suits. The vast chasm between those concepts, without a bright line or even a flashlight, is the scene of much litigation.

In terms of defense, it appears as if unfair or “unconscientious conduct” (unclean hands), even if first discovered in the malicious prosecution action, may be asserted as a defense, since it involves the court’s integrity. Therefore, although shotgun pleading is prohibited, it may be open season on shotgun defending. Kendall-Jackson Winery, Ltd. v. Superior Court (Dec. 3, 1999, 5th Dist.) 99 C.D.O.S. 9561.

Malicious prosecution involving attorneys is so conceptually dense and complex that only lawyers could love it.

Diane Karpman specializes in lawyer law. She can be reached at 310/887-3900 or karpethics@aol.com.