Court Clarifies Anti-SLAPP Defense in Malpractice Claims

Strategic Lawsuits Against Public Participation, or SLAPPs, are designed to chill free speech by targeting individuals who speak out on issues of public interest. SLAPP plaintiffs generally do not intend to win on the merits of the lawsuit, but instead seek to harass critics by forcing them to incur legal fees in defending frivolous claims.  Consequently, many states have enacted anti-SLAPP statutes to protect petition and free speech rights.  These statutes protect statements made before a government body or in a public forum in connection with an issue of public interest from legal liability. Attorneys facing lawsuits for statements made on behalf of a client in a judicial proceeding have looked to anti-SLAPP statutes to provide protection for claims arising from those statements.

A recent decision from the California Court of Appeals casts doubt on the availability of this defense for attorneys in the malpractice context.  The lawsuit arose out of an underlying dispute involving an LLC.  Specifically, in 2011 a plaintiff purchased a majority interest in the LLC and filed a lawsuit against its manager.  The parties subsequently reached a settlement in the underlying action.

In turn, the plaintiff filed a malpractice claim against the LLC’s former attorney, alleging he acted against the interest of his client.  The attorney moved to dismiss the lawsuit under the California anti-SLAPP statute, claiming that his actions in the lawsuit were made on behalf of a client in a judicial proceeding, and were thus protected. The trial court determined that the action was based on an act in furtherance of the protected right of petition, and dismissed the claim.

On appeal, the court noted that a successful anti-SLAPP defense requires a two-step process.  First, the defendant must show that the acts were taken in furtherance of the right of free speech in connection with a public issue.  If this threshold showing is made, the plaintiff must demonstrate a probability of prevailing on the claim.

On this first question, the court drew a distinction between causes of action against attorneys based on conduct done on behalf of the client, and causes of action by non-clients.  Claims for injuries suffered by adversaries or other non-clients resulting from an attorney’s acts in litigation are barred by the anti-SLAPP.  However, statutes brought by former clients (i.e. malpractice claims) are not protected.  Because the lawsuit against the attorney was grounded in malpractice, the court held that the anti-SLAPP statute did not apply.

While attorneys may be afforded anti-SLAPP protection for litigation activities in claims made by third parties, this protection may not reach a client’s rights to pursue legal action for alleged malpractice.  Attorneys must therefore be wary of the application of anti-SLAPP statutes.