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San Francisco�If a California attorney has good reason to suspect that a lawsuit has no merit after it has been filed, he would be wise to get out while the gettin’s good. In a case of first impression last week, the California Supreme Court ruled unanimously that lawyers could be sued for malicious prosecution if they continue to pursue a case after learning it isn’t supported by probable cause. “Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset,” Justice Janice Rogers Brown wrote. “As the court of appeal in this case observed, ‘It makes little sense to hold attorneys accountable for their knowledge when they file a lawsuit, but not for their knowledge the next day.’” The ruling reinstates a malicious prosecution suit filed by Woodland Hills, Calif., lawyer Jerome Zamos against former client Patricia Brookes and her subsequent attorney, James Stroud. Zamos accused the two of persisting in pursuing a fraud action against him in spite of strong evidence that he had done nothing wrong. Brookes had accused Zamos of misrepresenting her in a foreclosure suit in which she received a settlement of nearly $167,000. Zamos offered documents from court hearings indicating that he had not misled Brookes in any manner: Los Angeles County Superior Court Judge Stephen Petersen even told Brookes she “couldn’t have had a better lawyer” than Zamos. The California 2d District Court of Appeal backed Zamos last year, even though the same court had held in two separate cases in 2002 that malicious prosecution was limited to the initiation of a suit, not the continuation. In last week’s opinion, the Supreme Court disapproved of both those cases- Swat-Fame Inc. v. Goldstein, 101 Cal. App. 4th 613, and Vanzant v. DaimlerChrysler Corp., 96 Cal. App. 4th 1283. “Confining the tort of malicious prosecution to the initiation of a suit without probable cause would be, we conclude, without support in authority or in principle,” Brown wrote. Brown noted that for 25 years the law-as stated in the Restatement (Second) of Torts-has held that anyone who continues a civil proceeding after learning there is no probable cause “becomes liable as if he had then initiated the proceeding.” In addition, Brown pointed out, 13 states have agreed, including Colorado in 1932, and Pennsylvania in 1900.

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