Left to right: Cassidy Chivers and Kendra Basner, Hinshaw & Culbertson
Left to right: Cassidy Chivers and Kendra Basner, Hinshaw & Culbertson ()

A lawyer’s primary function is to be an advocate. Although we are to practice as “competent” advocates under the California State Bar Rules of Professional Conduct, “zealous” advocacy is the cornerstone of our fiduciary profession, mandating that our client’s interests are above our own. We should also understand, however, that advocacy can breed acrimony, and lawyers can become targets of vengeful tort claims by non-clients caught in the crosshairs of litigation. Several statutory safeguards exist to protect against these types of retaliatory lawsuits, providing us relatively wide latitude to practice with zeal, but the safeguards should not be worn like battle-ready suits of armor. They are not impenetrable.

The anti-SLAPP statute provides the most sweeping protection, imposing an initial burden on the plaintiff to establish a probability of prevailing if any claim arises from petitioning activity. (Civ.Code §425.16). Qualifying conspiracy claims alleging the attorney conspired with the client are subject to similar treatment. (Civ.Code §1710). Indeed, under the common law agent’s immunity rule from which the conspiracy statute originates, an agent (the lawyer) cannot be liable for conspiring with the principal (the client). Both statutes have similar objectives: to put a swift end to meritless lawsuits that are designed to disrupt the attorney/client relationship and our ability to do our jobs competently. (See, Stueve v. Kahn (2013) 271 F.3d 1184, 329; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2). The litigation privilege adds another layer of protection (except in malicious prosecution cases) providing absolute immunity from tort liability when the alleged communications have “some relation” to judicial proceedings. (Civ. Code § 47(b)). ( Rubin v. Green (1993) 4 Cal.4th 1187, 1194).

These significant protections are in place to fend against liability to non-clients as a result of representational activities (i.e., communications and communicative conduct). The Fourth District recently said it most bluntly when it affirmed the dismissal of a suit against a law firm accused of civil conversion and receiving stolen property from its own client during discovery in the underlying action: “Without the litigation privilege, attorneys would simply be unable to do their jobs properly.” Finton Constr., Inc. v. Bidna & Keys, APLC, (2015) 238 Cal. App. 4th 200, 212.

The determination in Finton was “a very easy one,” according to the court, but not all representational activities are created equal. The courts have made clear that advocacy can go too far. Unfortunately, the line between proper ”zeal” and actionable, tortious conduct is not as clear.

The majority and dissenting opinions in Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136 illustrate this point. Rickley involved application of the litigation privilege and an exception to the conspiracy statute (and common law agent’s immunity rule) under which the attorney owes an “independent legal duty” to the non-client plaintiff. The lawyers represented a landowner that had dumped contaminated soil on his neighbor’s property during a remodeling project. The neighbor (also a lawyer) sued for injunctive relief, and ultimately secured a remediation order under which the landowner’s lawyers were required to hold the remediation funds in a trust to be distributed in a fair manner. Instead, the record (as recited by the majority) showed that the money was not distributed fairly. The lawyers also purportedly violated an order prohibiting them from emailing the remediation contractors without prior approval. According to the majority, the lawyers also actively supervised, directed and participated in other prohibited activities at the property. The neighbor sued the landowner (again) for continuing nuisance and sought to add a conspiracy claim against the lawyers.

The Second District affirmed the trial court’s order permitting the conspiracy claim. By their representational conduct, the lawyers “interjected themselves into the remediation process, interfered with the remediation plan, and contributed to the continuing nature of the nuisance,” and, thus, “breached an independent legal duty “to abstain from injuring the … property of another.” The majority also held that the litigation privilege did not apply to “postjudgment communications”, thus, distinguishing the well-established rule from Rusheen v. Cohen (2006) 37 Cal.4th 1048, applying the litigation privilege to an attorney’s post-judgment enforcement activities. The majority said that “if anything, the attorney-defendants engaged in postjudgment obstructionist activities by actively assisting their clients in thwarting the remediation plan. Unlike the defendant in Rusheen, the attorney-defendants in this case were not taking steps to enforce a judgment. Rather, they engaged in affirmative misconduct that contravened a judgment.” In other words, the majority did not look just to what the lawyers did, but also why they did it. It seems the majority’s opinion was colored by its distaste for the lawyers’ particular brand of advocacy.

In her dissent, Justice Frances Rothschild (now presiding justice) warned that the majority opinion sets dangerous precedent, stating it “not only reaches the wrong result in this case but also introduces confusion and uncertainty into this area of the law.” She pointed out the duty to abate the nuisance was “peculiar to” the landowner. Thus, there was no “independent duty” owed by the landowner’s agents—the lawyers. The conspiracy claim should have failed. Her comments regarding the litigation privilege were even more reproachful: “The majority argues that Rusheen is distinguishable … . The difference between enforcement and obstruction, however, is often in the eye of the beholder. … The protection afforded by the litigation privilege is hollow if it can be defeated by a mere allegation that plaintiffs are right and defendants are wrong.” Justice Rothchild also criticized the majority’s almost blind acceptance of the plaintiff’s version of the facts, noting several examples of “facts” devoid of support or at least subject to dispute.

The courts’ application of the anti-SLAPP statute to third party claims against lawyers is somewhat more uniform, although a gray area does exist. Generally, the statute is to be construed broadly: “all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” Cabral v. Martins (2009) 177 Cal.App.4th 471, 479–480. However, where conduct is “illegal as a matter of law,” that is, the defendant lawyer “concedes, or the evidence conclusively establishes” the activity was criminal, the statute does not apply. Mendoza v. ADP Screening and Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.

Uncertainty in this area can arise in the context of settlement demands. In the seminal Flately v. Mauro decision, the court held that a settlement demand to the celebrity dancer, Michael Flately, threatening worldwide publication of rape allegations against the dancer, was criminal extortion as a matter of law because the threat had nothing to do with claim to be settled. Thus, the settlement demand was a pretext for extortion. Flately (2009) 39 Cal.App. 299.

Threatening to file a lawsuit and publicizing the allegations may not amount to extortion in the typical civil case. However, what if the facts are, themselves, inflammatory and sensitive? Such was the case in Malin v. Singer (2013) 217 Cal.App.4th 1283. The underlying dispute involved, in part, allegations of company mismanagement and embezzlement. In his settlement demand letter, the lawyer enclosed the intended complaint, and warned, “I have deliberately left blank spaces in portions of the Complaint dealing with your using company resources to arrange sexual liaisons with older men such as ‘Uncle Jerry,’ Judge [name redacted], a/k/a ‘Dad’ (see enclosed photo), and many others. When the Complaint is filed … there will be no blanks in the pleading.” The lawyer was sued for civil extortion, and he moved to strike the claim under the anti-SLAPP law. The trial court, relying on Flately, ruled that the letter was “best read as extortion as a matter of law … [and] … well beyond a typical demand letter.” After significant briefing, the Second District reversed in a published decision, finding the “secret” that would expose the plaintiff to disgrace was inextricably tied to the pending complaint. It was not extortion.

The statutes above, along with other protections like the mediation confidentiality statute discussed in our prior article, were enacted to enable zealous representation within ethical confines. Yet it seems the courts are still defining the borders of zealous advocacy. In the meantime, this uncertainty, as warned by P.J. Rothschild, will cause lawyers to second-guess their strategic decisions based not on what is best for the client, but their own self-preservation. Perhaps the ultimate lesson is that we as advocates need to be more willing to put “civility” on equal footing with “zeal.” As one court aptly stated, “zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1537.

In Practice articles inform readers on developments in substantive law. Contact Laurel Newby with submissions or questions at lnewby@alm.com.