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.
 Adverse 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.
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