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Claims against lawyers are a popular activity

Diane Karpman

By Diane Karpman

Litigators walk a tightrope. Clients can sue them for malpractice if they are not aggressive enough. If they are too zealous or aggressive, defendants can maintain retaliatory actions for malicious prosecution. That is, if there is a favorable termination on the merits, the absence of objective legal and factual probable cause, and subjective malice.

Overly broad statements in the complaint can result in malicious prosecution liability, so avoid including peripheral or non-relevant parties and shotgun pleading for every claim under the sun. Seriously evaluate threats of malicious protection in letters. Research and document the supporting factual and legal arguments. This is designed to provide ammunition for an eventual judgmental immunity defense. Do not lose it in correspondence with opposing counsel. Letters containing gratuitous ad hominem garbage could provide satisfaction of the subjective element of malice. Recent developments in malicious prosecution cases evidence judicial aversion to claims against lawyers, but the vast number of reported decisions demonstrates the popularity of the action.

In the past, California lawyers could face liability for continuing to maintain the litigation. Now, because of Swat-Fame v. Goldstein (2002) 101 Cal. App. 4th 613, 627, "a lawyer has no liability for continuing an action where probable cause existed at time of filing." Malicious "continuance" of litigation seems to have vanished from the California legal landscape. Ronald Mallen, the malpractice guru, explains that the harm is sustained at the inception of the case, "since the emotional impact, adverse publicity, and the expense of retaining counsel are incidents of initiating the proceeding." Legal Malpractice (2000) Fifth Edition West Group Vol. 1, §6.14, pg 592. At first, this may not appear to make sense in terms of pub- lic policy. Continuing to maintain un-meritorious litigation could appear to violate Rule 3-200 (Prohibited Objec-tives of Employment). Yet, when discovery establishes that the client was mistaken, inaccurate or "forgetful," obviously they cannot be abandoned in the midst of heated litigation.

Cases clearly demonstrate that the anti-SLAPP statute applies to malicious prosecution claims. The Anti-Strategic Lawsuit Against Public Participation, CCP §425.16, was originally intended to protect "tree-huggers" against suits designed to silence them with massive litigation costs. Filing the special motion to strike automatically stays discovery and forces the plaintiff to demonstrate a "probability" of success.

Anti-SLAPP is a sexy statute, because functionally, it is a reverse summary judgment, forcing plaintiffs to show their hand before any discovery is obtained. Litigators in malicious prosecution deploy it as a weapon of mass destruction, quickly terminating frivolous claims. As an additional bonus, it permits recovery of attorneys' fees. Plaintiffs' lawyers asserting malicious prosecution claims should inform their clients if they fail to prevail, they can end up paying the costs of defending the litigation, or they could also face liability for negligence.

Trial courts now have the power to aggressively block these meritless claims against lawyers acting in a representative capacity. Malicious prosecution claims against lawyers are easy to file, but very hard to win.

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