Lawyers are frequently subject to malicious prosecution suits and other claims arising from their work on behalf of clients, some meritorious, some not. One of the benefits of the California anti-SLAPP law (and similar laws in other states) is that it provides a procedure for lawyer defendants to dispense with some of these professional hazards quickly, before the expenses of discovery and protracted litigation have been incurred. (Although the law, notably, does not apply to malpractice claims brought by the client the lawyer was representing — only to claims brought by third parties). The law thus saves lawyers and their insurers considerable time and attorneys’ fees, and helps reduce the caseload of the courts; the fee-shifting provision of the law also shifts the costs of defending these suits onto the plaintiffs who bring them.
The recently published case of Thayer v. Kabateck Brown Kellner LLP (First District, May 30, 2012) illustrates how the anti-SLAPP law protects lawyers from such meritless claims. That case involved what can charitably be described as a speculative claim. The plaintiff sued a law firm that had brought a class action lawsuit involving resort memberships sold to a large class of plaintiffs. Among the class members was the plaintiff’s spouse. As part of the settlement obtained by the lawyers, the class members were notified that a small percentage of each of their settlement payouts would go to a fund established to bring a criminal prosecution against an individual involved in the resort membership scam, unless they opted out of the fund by a certain date. The plaintiff’s spouse did not opt out. The plaintiff then threatened to, and did, sue the lawyers for improperly deducting this percentage of the class members’ recovery without the class members’ explicit permission to do so. The law firm then, prudently, did not deduct this percentage from the plaintiff’s spouse’s recovery. Nevertheless, the plaintiff persisted with the lawsuit, even though his spouse was not damaged, on the theory that her lawsuit, too, was a class action brought on behalf of the class members whose recoveries had been reduced, and that she, the plaintiff, was a third-party beneficiary of the settlement agreement as the spouse of a class member, and therefore entitled to sue for the improper disbursal of settlement funds.
If that sounds confusing, it is. The Court of Appeal did not buy any of it, concluding that, at most, the plaintiff had shown a possible cause of action on behalf of her spouse, not herself. Before getting there, however, the court concluded that the anti-SLAPP statute applied to the plaintiff’s complaint. The court reasoned, in accordance with the language of the statute and established precedent, that any lawsuit brought on the basis of statements made in the course of a judicial proceeding was subject to section 425.16, under subdivisions (e)(1) and (2) of the statute. Although an exception to this general rule exists for so-called “garden variety” malpractice claims — i.e., those brought by a former client of the attorney being sued — that exception did not apply here, since the plaintiff’s spouse, not the plaintiff, was the former client.
That exception makes sense, because in a typical malpractice action, the assertedly protected litigation activity at issue was undertaken on behalf of the very client who is now suing the lawyer. Applying the procedural First Amendment protections of the anti-SLAPP law in such a situation would undermine the purpose of the law, because it is the plaintiff’s, not the defendant’s, First Amendment rights that were being exercised in the underlying matter. In Thayer, however, no such concern was present, since the former client’s spouse was claiming some sort of misdeed by the lawyers.
Regardless, Thayer stands as a good example of how the anti-SLAPP statute protects lawyers from the type of meritless professional liability claims many face. Now, the lawyer defendants are entitled to their fees and costs for defending against this somewhat ridiculous lawsuit, and they were able to rid themselves of it perhaps much faster than they otherwise would have had the case gone through discovery, motions for summary judgment, and then perhaps a subsequent appeal.