Can an Attorney Be Sued for Representing a Client in Litigation?
It may sound ridiculous, but attorneys (or their law firms) are sometimes tacked on as defendants in a complaint. Is this legal? Can another attorney do this? Talkov Law’s attorneys explain how anti-SLAPP law prevents this and the devastating legal repercussions of including a law firm to a list of defendants.
Two Prongs of a California Anti-SLAPP Motion
Anti-SLAPP statutes are meant to encourage public participation and prevent the justice system from being used as a weapon to prevent free speech. California’s anti-SLAPP statute states, in part, that: “it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” Cal. Civ. Proc. Code § 425.16.
Furthermore, an anti-SLAPP motion must meet two distinct requirements: in the first step or prong, the defendant must show that the conduct underlying the plaintiff’s cause of action, or portions of the cause of action that are asserted as grounds for relief, arises from the defendant’s constitutional rights of free speech or petition. Cal. Code Civ. Proc. § 425.16(b)(1); see Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. In the second prong or step, the burden shifts to the plaintiff to prove that the plaintiff has a legally sufficient claim and to prove with “admissible evidence” a “probability” that the plaintiff will prevail on the claim. Navellier v. Sletten (2002) 29 Cal. 4th 82, 88–89.
First Prong: Anti-SLAPP Statutes Preserve Attorneys’ Litigation-Related Activities
These anti-SLAPP requirements include protection from attempts to silence or otherwise prevent attorneys from petitioning the government, a quintessential tenet of free speech. As Rutter explains, an “attorney giving advice to client and corresponding with opposing counsel were ‘unquestionably protected activities’ under the anti-SLAPP statute.” Litigation-related activities broadly protected, Anti-SLAPP Litigation (The Rutter Group) § 3:31 (quoting Contreras v. Dowling (2016) 5 Cal.App. 5th 394). Rutter quotes the 2016 opinion in Contreras v. Dowling (2016) 5 Cal.App. 5th 394, 409, as modified on denial of reh’g (Nov. 18, 2016), where the Court of Appeal made crystal clear that: “An attorney’s communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike,” meaning that “allegedly tortious activity centered in defendants’ role as counsel was protected litigation activity.”
“A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 425.16 [special] motion to strike. ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. This includes qualifying acts committed by attorneys in representing clients in litigation.” Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App. 4th 141, 154. “In fact, courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ …Cases construing the anti-SLAPP statute hold that ‘a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.’ Consequently, because settlement negotiations are regarded as an exercise of the right to petition, communications during such negotiations are regarded as having been made in connection with the underlying lawsuit for purposes of section 425.16, subdivision (e)(2).” Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal. App. 5th 95, 113–14. Courts have even explained that: “The protection of the anti-SLAPP statute applies ‘even against allegations of fraudulent promises made during the settlement process.’” Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal. App. 5th 95, 113–14.
These authorities provide convincing arguments that most of what attorneys do in the course of representing a client should be deemed protected activity, thereby meeting the first prong.
Second Prong: Anti-SLAPP Statutes Require a Probability of Prevailing
On the second prong, the plaintiff bears the burden of “establish[ing] that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16. Lacking the “probability” of prevailing on the claim establishes the second prong, which allows a defendant to hold a plaintiff liable for attorney’s fees as the prevailing party on the Anti-SLAPP statute.
Recovering Attorney’s Fees Incurred in Filing an Anti-SLAPP Motion
Filing an anti-SLAPP motion in response to a SLAPP complaint can be used not only to defeat the complaint, but also to hold the plaintiff liable for paying the entirety of the defendant’s attorney’s fees if the defendant prevails. In fact, the defendant’s attorney may even be entitled to a fee enhancement from the plaintiffs. Ketchum v. Moses (2001) 24 Cal. 4th 1122.
Privileged Publication
Furthermore, litigation-related activities fall under the scope of a privileged publication, which is a protected publication made as part of an official duty. California Civil Code § 47 defines a privileged publication as one that is made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.
(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, “physical evidence” means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.
(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.
That statute makes clear that a “judicial proceeding” (aka a litigation-related activity) is considered a privileged, and therefore protected, activity.
Contact a Knowledgeable Anti-SLAPP Attorney in Los Angeles, Orange County, San Francisco, Riverside, San Diego, San Jose, Sacramento, and Surrounding Areas in California
Attorneys choosing to include another attorney who is doing his or her job as a legal professional must be aware of the consequences. Anti-SLAPP statutes strongly discourage suing attorneys or law firms, and there are dire consequences related to adding another attorney or law firm as a defendant in a complaint. If you have been sued while representing a client or are looking for more guidance on anti-SLAPP statutes, the attorneys at Talkov Law can help. Contact us today either online or by phone at (844) 4-TALKOV (825568)
