SLAPP Solutions Daily Journal Publications SLAPP Law applies to malicious-prosecution action

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Lawyers SLAPP Back!
by Lisa M. Chait and Harry W.R. Chamberlain II June 2002

Legal advisors have standing to challenge third party derivative tort suits under Code of Civil Procedure § 425.16 Introduction - The Rising Tide of Third Party Claims Against Lawyers.

You consider yourself a careful attorney. You regularly attend risk management programs sponsored by your professional liability insurer, and seminars on cutting-edge ethical issues at local bar association meetings. Your office maintains the latest computer software for calendaring important deadlines. And you take full advantage of the vast array of electronic technologies that keep your clients instantly informed about the progress of their cases and transactions. So you think you’re doing all that you can to prevent lawsuits involving your practice Well, think again! According to data compiled by the Los Angeles County Bar Association-sponsored legal malpractice insurance program and the ABA’s Standing Committee on Professional Liability, the risk of claims by third parties (people you do not represent) is at an all-time high. Today, the biggest threat of litigation facing a lawyer practicing in Los Angeles is not a malpractice claim by his or her client – it is a malicious prosecution action by the disgruntled opposing litigant who was named as a party in that client’s unsuccessful prior lawsuit. Malicious prosecution is a “derivative tort” claim – a secondary lawsuit that targets opposing parties or their legal advisors for conduct and communications that occurred during the course of another legal action. During the past two decades the California Supreme Court has closely circumscribed the “disfavored tort” of malicious prosecution and similar derivative torts. For example, the Court recently abolished tort liability for “spoliation of evidence,” opting instead to defer questions of appropriate sanctions, evidentiary inferences or jury instructions to trial judges in the original case in which the evidence was allegedly lost or destroyed. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 18-19.) Thus, when a lawyer or some other “non-party” allegedly despoils or conceals relevant evidence during the course of pending litigation, the antidote is not another round of derivative litigation; instead, the exclusive remedies are monetary sanctions, professional discipline, contempt and criminal law deterrents, such as prosecution for obstruction of justice. (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 470.) While some critics have called for eliminating malicious prosecution altogether in favor of other alternative remedies and sanctions, the theory remains. And in spite of their “disfavored” status, at least statistically speaking, malicious prosecution and other derivative claims continue to spawn secondary lawsuits against members of the legal profession. Lawyers, armed with recent legislation and judicial decisions, are fighting back however. Under the anti-SLAPP statute (Code of Civil Procedure § 425.16), legal advisors now have standing to challenge an action for malicious prosecution at the inception of the lawsuit by way of a special motion to strike. Unless the plaintiff establishes that there is a “reasonable probability” of success on the merits, the case is dismissed – and the prevailing defendant is entitled to recover attorneys’ fees. This article explores favorable trends in defending derivative tort claims and, hopefully, avoiding them in the first place. How the Anti-SLAPP Statute Operates to 'Screen' Derivative Tort Suits.
What is a SLAPP Suit? “SLAPP” stands for “strategic lawsuit against public participation.” Courts have adopted this acronym for any lawsuit filed primarily to chill the defendant’s exercise of First Amendment rights – such as free speech, petitioning a government body for redress of grievances, or pursuing legal remedies in a court of law. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1 (Briggs).) SLAPPers are not necessarily concerned with “winning.” The primary motivation of the SLAPP suit is to punish those who exercise their First Amendment rights or to obtain an economic advantage over the defendant rather than vindicate some legally cognizable right. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 816 (Wilcox).) While most SLAPP suits are ultimately unsuccessful in enforcing any valid legal right on behalf of the plaintiff, they often “succeed” in other areas. This is because defending a SLAPP suit – even when there is a strong defense – requires a substantial investment of money, time and personal resources of the “SLAPPed” defendant. This “chilling” effect is not confined to those who are the targets of a SLAPP suit. Other parties who are similarly situated, and their lawyers, may also be “chilled” in the free exercise of their rights for fear of becoming the targets of future litigation. SLAPP suits thus often masquerade “as ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.” (Wilcox, supra, 27 Cal.App.4th at pp.816-817; Elizabeth Pritzter & Mark Goldowitz, GUARDING AGAINST THE CHILL: A SURVIVAL GUIDE FOR SLAPP VICTIMS (1994-present) at pp. 2-3 [California Anti-SLAPP Project website at www.casp.net].) The ‘Anti-SLAPP’ Statute. Code of Civil Procedure section 425.16, the so-called “anti-SLAPP” statute, was enacted in 1992 and has been broadened by amendments in recent years to provide the targets of a SLAPP suit with a special vehicle for the early examination and disposal of meritless suits. The anti-SLAPP statute is a “screening” procedure requiring a plaintiff who brings an action arising out of protected speech or petition activity, at the outset of the SLAPP suit, to “make a prima facie showing [verified under oath] which would, if proved at trial, support a judgment in [the plaintiff’s] favor.” (Code Civ. Proc., § 425.16, subd. (b).) Once the moving defendant has demonstrated that the plaintiff’s cause of action arises from free speech or petition activity, “the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim.” (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) This screening mechanism operates like a nonsuit or summary judgment motion “in reverse;” if the plaintiff cannot satisfy the burden of proving a prima facie case under oath, then the SLAPP-defendant is entitled to dismissal of the SLAPP suit, and an award of his or her attorneys’ fees and legal costs necessarily incurred in defending the action. (See Briggs, supra, 19 Cal.4th 1106 at pp. 1111-1123; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644; Code Civ. Proc., § 425.16, subd.(c).) Section 425.16 thus provides for “fast and inexpensive unmasking and dismissal” of frivolous and improperly motivated claims that are subject to the statute. (Wilcox, supra, 27 Cal.App.4th at p. 823.) As amended in 1997, section 425.16(a) “declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the Constitutional rights of freedom of speech and petition for the redress of grievances. . . . [I]t 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. To this end, this section shall be construed broadly.” Heeding the Legislature’s command to broadly construe the statute, the courts have held that “[any] cause of action arising from litigation activity may appropriately be the subject of a section 425.16 motion.” (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141,151 (Shekhter), emphasis added.) Such activity plainly encompasses “the filing and prosecution of [civil] actions as well as statements made . . . in relation to those lawsuits.” (Ibid.; Briggs, supra, 19 Cal.4th at pp.1115-1116 [“[p]etitioning activity involves lobbying the government, suing, [and] testifying”].) Advantages of the Anti-SLAPP Statute (CCP §425.16)
Scope: The special motion to strike applies to any claim or cause of action arising from free speech or petition activity. Statute is “construed broadly.”
Motion Priority: The motion must be heard within 60 days after complaint served + all discovery is stayed unless “good cause” is shown.
Burden on Plaintiff to Prove “Probability of Success” on the Merits: If plaintiff cannot satisfy the burden of proving a prima facie case under oath, then defendant is entitled to dismissal of the SLAPP suit.
Attorneys’ Fees Awarded to Prevailing Defendant as Costs: Defendant’s fees and costs are mandatory if the motion prevails. Plaintiff may recover fees only if motion was “frivolous.”
Right to Immediate Appeal: If the motion is denied, defendant has right to immediate appeal, staying proceedings in the trial court. Prevailing defendant recovers attorneys’ fees on appeal.

The many procedural advantages of invoking the anti-SLAPP statute include: The special motion to strike takes precedence over virtually all other activity in the lawsuit, ordinarily requiring the “merits” hearing within 60 days after service of the complaint. All discovery is stayed until the hearing on the motion, unless “good cause” is shown, and then such discovery as may be allowed is usually limited to the issues raised by the anti-SLAPP motion. (Code Civ. Proc., § 425.16, subds.(f), (g).) If the moving defendant prevails, attorneys’ fees are awarded as part of the statutory costs of defending the lawsuit – whereas the plaintiff who successfully demonstrates a prima facie case must show that the anti-SLAPP motion was objectively frivolous. (Code Civ. Proc., § 425.16, subd. (c).) The fee award must be sufficient to compensate the defendant for the cost of defending the entire action, or at least that portion of it which constituted a SLAPP suit – including the fees reasonably incurred by the prevailing defendant on appeal. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019-1020 (ComputerXpress); Shekhter, supra, 89 Cal.App.4th at p. 150 [“a single cause of action [may] be stricken”].) Once the trial court has concluded that the action is a SLAPP suit, there is no right for “leave to amend” because the courts are required to go beyond the pleadings and determine the SLAPP plaintiff’s improper intent to chill First Amendment activity. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.) If the motion is unsuccessful, the defendant also has the right to immediately appeal from the order denying the anti-SLAPP motion, effectively staying theproceedings in the trial court until the Court of Appeal independently reviews the record de novo to decide if the plaintiff should be allowed to proceed. (Shekhter, supra, 89 Cal.App.4th at pp. 150-151; Code Civ. Proc., § 425.16, subd. (j).) Lawyers Have Standing to Invoke Section 425.16. Until recently, it was unclear whether section 425.16 extended to the activities of lawyers and other legal advisors who facilitate their clients’ rights to petition the courts. A party’s legal representatives, at the same time, arguably have standing to invoke the statute’s protection in the exercise of their own personal rights of free speech with respect to that representation, advice and counsel. (See Paul v. Friedman (2002) 95 Cal.App.4th 853, 865 [questioning lawyer standing]; and compare Schekhter, supra, 89 Cal.App.4th at p. 151 [“Mr. Kass and the Manning law firm [the lawyers for Allstate] had standing to bring the special motion”]; Briggs, supra, 19 Cal.4th at pp. 1109-1110, 1115-1119 [section 425.16 applied to legal aid society personnel who allegedly “instigate” and “counsel” tenants in property disputes]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [lawyers initiating Attorney General investigation of consumer complaints].) Another unsettled question was whether section 425.16 could be applied to “screen” malicious prosecution actions. (See Wendy Gordon Carroll, The New Assault on Malicious Prosecution: The Anti-SLAPP Statute, L.A. COUNTY BAR UPDATE (Oct. 2000) at pp.1-3.) Several California appellate courts have applied the statute to test the merits of malicious prosecution claims, and “functionally indistinguishable” derivative tort theories. (See Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088 [malicious prosecution]; Jarrow Formulas, Inc. v. LaMarche (2002) 97Cal.App.4th1,17 [same] (Jarrow); ComputerXpress, supra, 93 Cal.App.4th at pp. 1005-1010, 1015 [abuse of process]; Schekhter, supra, 89 Cal.App.4th at p. 151 [unfair competition and business interference torts “arising from” filing and prosecuting the prior action].) These decisions leave no doubt that section 425.16 protects “both lawyer and client for litigation-related conduct in an underlying lawsuit.” (Jarrow, supra, 97 Cal.App.4th at p. 18.) Attacking the Merits of Plaintiff’s Case Under the Anti-SLAPP Procedure. An anti-SLAPP motion works much like a motion for summary judgment. It is a speaking motion, which may be supported by declarations, documentary evidence and judicially noticeable facts. When the special motion to strike is filed, the trial court must consider two components: First, the moving party has the initial burden of showing that a cause of action falls within the purview of section 425.16 because it arises out of the defendant’s actions in furtherance of the rights of petition or free speech. Second, the obligation then shifts to the plaintiff to establish a probability that she or he will prevail on the merits. (Jarrow, supra, 97 Cal.App.4th at pp.15-16.) Claims for malicious prosecution are classic SLAPP suits because they “chill” the rights of free speech and petition for redress of grievances: “Courts have long recognized that the tort has the potential to impose an undue ‘chilling effect’ on a citizen’s willingness to . . . bring a civil dispute to court, and, as a consequence, the tort has historically been regarded a disfavored cause of action.” (Sheldon Appel & Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 (Sheldon Appel).) By definition, such actions arise out of “a party’s constitutional right to petition.” (Chavez v. Mendoza, supra, 94 Cal.App.4th at p.1087.) Once it has determined that the malicious prosecution action is subject to screening, the trial court must evaluate whether the plaintiff has demonstrated by satisfactory proof the essential elements of the claim: (1) that the prior action was initiated by or at defendant’s direction and was terminated in plaintiff’s favor; (2) was brought without probable cause; and (3) was commenced with malice. (Sheldon Appel, supra, 47 Cal.3d at pp. 871-872.) Favorable termination is not necessarily established by the dismissal of the prior lawsuit. For example, a voluntary dismissal in furtherance of a settlement or simply to avoid further litigation expenses is not a favorable termination on the merits. (Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814-1817.) The same is true where the prior case is disposed of as untimely under the applicable statute of limitations “because it does not reflect at all on the substantive merit of the claim alleged.” (Stanley v. Superior Court (1982) 130 Cal.App.3d 460, 465.) The second element – probable cause – ordinarily presents a question of law where the facts are not materially disputed. The courts have imposed strict limits in this regard, requiring that“[t]he plaintiff in a malicious prosecution action must prove each of the necessary elements of the tort, and the trial court must carefully consider the issue of probable cause so that recovery is not permitted for mere negligence in bringing an action, or simply because the action was not successful.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 1515, 1562, internal citations omitted, emphasis added.) “Counsel and their clients have the right to present issues that are arguably correct, even its is extremely unlikely they will win . . . .” (Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 66 .) “If a court finds that the initial lawsuit was in fact objectively tenable,” then the prior action was not frivolous, and the malicious prosecution plaintiff has suffered no “improper or unjustified hardship” in being required to defend the prior suit. (See id. at p. 63, emphasis added; Sheldon Appel, supra, 47 Cal.3d at p. 878.) As such, an interim ruling allowing the case to go forward – even though later reversed on appeal – can establish that the underlying lawsuit was objectively tenable, in the eyes of at least one “reasonable lawyer [i.e., the trial judge].” (Vanzant v. DaimlerChrysler Corp.(2002) 96 Cal.App.4th 1283,1288-1290.) Likewise, the separate element of “[m]alice must be established by other, additional evidence.” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 498.) Merely because the prior action lacked probable cause, “without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor’s subjective malicious state of mind. . . . [] [T]hat evidence must include proof of actual hostility or ill will on the part of the defendant or the subjective intent to deliberately misuse the legal system . . . for the intentionally wrongful purpose of injuring another person.” (Id. at pp. 498-499, citing Sheldon Appel, supra, 47 Cal.3d at p. 885.) How the anti-SLAPP statute applies to attack a malicious prosecution claim is well illustrated by the Court of Appeal’s recent opinion in Jarrow Formulas, Inc. v. LaMarche (2002) 97 Cal.App.4th 1. (*Editor’s Note: Mr. Chamberlain served as co-counsel on appeal for the prevailing defendants in Jarrow; the case was argued by the Association’s immediate past-President, Edith R. Matthai.) Jarrow Formulas, a company which manufactured vitamins and nutritional supplements, sued Sandra LaMarche, a graphic artist, over the ownership rights to certain artworks used on the packaging and promotional materials of Jarrow’s products. LaMarche hired a lawyer to defend lawsuit, and cross-complained against Jarrow for defamation and wrongful interference with LaMarche’s other business opportunities. The proceedings were hotly contested and acrimonious. Jarrow frequently threatened LaMarche and her counsel with the prospect of a subsequent malicious prosecution action. In a letter to one of LaMarche’s lawyers, Jarrow’s president wrote: “people who file bullshit lawsuits – AND THEIR LAWYERS – should know what it is like to have their lives made miserable by crap litigation just like mine has been.” (Jarrow, supra, 97 Cal.App.4th at pp.12-13.) Jarrow succeeded in having LaMarche’s cross-complaint dismissed on a motion for summary judgment; however, LaMarche thereafter prevailed on all of Jarrow’s claims at trial. In response to Jarrow’s inevitable malicious prosecution action, LaMarche and her lawyer moved for dismissal under section 425.16. The Court of Appeal held that the anti-SLAPP statute applied to Jarrow’s secondary lawsuit, and that Jarrow had not made the requisite showing that it was likely to prevail on the merits of its claim. (Jarrow, supra, 97 Cal.App.4th at pp.14-21.) Even assuming that Jarrow had received a favorable termination on the merits in the prior action, LaMarche’s cross-complaint was at least “legally tenable,” albeit unsuccessful. Jarrow’s failure to satisfy each element of its malicious prosecution claim barred recovery. Having prevailed under the anti-SLAPP statute, defendants “were entitled to [recover from Jarrow] their costs and attorneys fees on appeal and in the trial court.” (Jarrow, supra, 97 Cal.App.4th at p. 22, emphasis added. Employing Other Available Defenses – The Noerr-Pennington Doctrine. Because anti-SLAPP procedure permits the court to consider any matter bearing on the merits of the lawsuit, the defendant may not be content to merely challenge the elements of the plaintiff’s case. Don’t overlook other substantive law defenses and privileges that might be included in the moving papers which serve to demonstrate that the SLAPP suit has no reasonable likelihood of success. “Section 425.16 sets out a mere rule of procedure, but it is founded on constitutional doctrine. Those who petition the government are generally immune from . . . liability. This principle is referred to as the ‘Noerr-Pennington’ doctrine . . .” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 21.) The Noerr-Pennington doctrine generally holds that no liability will attach under the Sherman Act for a party’s efforts to influence a governmental body. Those activities are protected by the First Amendment right to petition the government for redress of grievances, even though the motive behind such activity is anti-competitive. (See generally Eastern R. Conference v. Noerr Motors (1961) 365 U.S. 117 and United Mine Workers v. Pennington (1965) 381 U.S. 657, 699-670; Professional Real Estate Investors, Inc. v. Columbia Pictures Ind., Inc. (1993) 508 U.S. 49, 55-58.) Later precedent extended Noerr-Pennington to petition activity in judicial, as well as administrative and legislative, proceedings. (Professional Real Estate Investors, supra, 508 U.S. at pp. 55-60; Hi-Top Steel Corp. v. Leherer (1994) 24 Cal.App.4th 570, 574.) Although originating in the field of federal antitrust litigation, the Noerr-Pennington doctrine has been consistently applied by California courts to actions for intentional interference with economic relations and similar common law “tort” theories. Thus, the scope of economic interference claims is limited by the constitutional right to petition for redress of grievances, including the right to seek relief in a court of law. (Pacific Gas & Elec. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1137 [hereafter PG&E]; Hi-Top Steel Corp. v. Leherer, supra, 24 Cal.App.4th at pp. 577-578.) The only limitation on the Noerr-Pennington privilege is the so-called “sham” exception. (Id. at p. 577.) Genuine efforts to influence government action will not constitute a sham. (Blank v. Kirwan (1985) 39 Cal.3d 311, 322; Hi-Top Steel Corp. v. Leherer, supra, 24 Cal.App.4th at pp. 578-583.) By parity of reasoning, litigation – the process of petitioning a judicial body – will not be deemed a sham unless the action is so “objectively baseless” and maliciously motivated that any reasonable litigant would have no realistic expectation of success on the merits. (Professional Real Estate Investors, 508 U.S. at pp. 60-61 & fn. 5.) When challenging the merits of a malicious prosecution claim, the existence of “probable cause” to initiate the legal proceedings or the absence of a malicious motive in doing so, precludes the application of the sham exception and compels dismissal of the action. (Ibid.; PG&E, supra, 50 Cal.3d at p.1137.) Our Supreme Court instructs that this “probable cause” assessment should be made as early as possible. (Id. at pp.1133-1137.) The constitutional privilege underlying Noerr-Pennington is consistent with the stated goal of section 425.16 – the early dismissal of unmeritorious claims. Civil Code §47(b) – The Absolute Litigation Privilege. Another check on derivative lawsuits against California lawyers is the “absolute litigation privilege” codified by Civil Code section 47(b). The litigation privilege bars tort claims against parties and their lawyers arising out of communications made during the course of judicial or official proceedings. Although cast in terms of immunity from defamation, section 47’s broad reach, “for well over a century [has applied to] communications with some relation to judicial proceedings [rendering participants in a prior lawsuit, including lawyers] absolutely immune from tort liability”on any theory – with the sole exception of malicious prosecution. (Rubin v. Green (1993) 4 Cal. 4th 1187, 1193-1194.) In addition to defamation torts, the litigation privilege bars liability claims on theories of abuse of process, invasion of privacy, misrepresentation, infliction of emotional distress, and interference with contractual or other business relationships. (Rubin v. Green, supra, 4 Cal.4th at pp. 1194-1195, & fn. 3.) “The principal purpose of section 47([b]) is to afford litigants . . . the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions.” (Id. at pp. 1194-1195, citing Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) Malicious prosecution actions are exempt from the otherwise “absolute” nature of the privilege because “[t]he policy of encouraging free access to the courts . . . is outweighed by the policy of [redressing] individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.” (Jarrow, supra, 97 Cal.App.4th at p.18.) One argument raised against applying section 425.16 to malicious prosecution claims is that this one remaining exception is somehow “abrogated” by the screening procedure. Not so. A determination that the anti-SLAPP statute applies to screen a given malicious prosecution claim “will not prevent valid malicious prosecution claims, but will require a plaintiff bringing this claim to demonstrate early on that the complaint is supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” (Chavez v. Mendoz, supra, 94 Cal.App.4th at p. 1089, emphasis added; accord McLarnon v. Jokisch (2000) 431 Mass. 343, 347, 727 N.E.2d 813, 816 [interpreting Massachusetts’ similar anti-SLAPP statute].) This result is entirely consistent with “the disfavored nature of the malicious prosecution tort” and the sound view that “the remedy for frivolous ‘litigation does not lie in the expansion of malicious prosecution liability.’” (Chavez v. Mendoz, supra, 94 Cal.App.4th at p.1089.) Section 425.16 thus supplements – but does not “supplant” – applicable privileges and defenses. The anti-SLAPP procedure is frequently employed in conjunction with challenges to derivative lawsuits targeting speech and petition activity also protected by the absolute litigation privilege under Civil Code §47(b) and by the Noerr-Pennington doctrine. (See, e.g., James Moneer, No-Win Situation, Opposing a SLAPP Motion is Time-Consuming and Expensive, LOS ANGELES DAILY JOURNAL, Aug. 4, 2000, at p. 5; Dennis J. Seider, SLAPP Shot, LOS ANGELES LAWYER (Nov. 2000) 32 at pp. 32-36, 53.) In some respects, the anti-SLAPP statute may be applied even more broadly than these other substantive law privileges, enabling the moving party to shift the burden to the plaintiff to show how “communicative conduct” or “noncommunicative conduct” in furtherance of First Amendment rights could result in a liability judgment. (See, e.g., Ludwig, supra, 37 Cal. App. 4th at pp.18-20; Rubin v. Green, supra, 4 Cal.4th at pp.1195-1196; Briggs, supra,19 Cal.4th at pp.1115-1116.) Protecting Yourself From Derivative Tort Suits.
An attorney who becomes the target of a derivative tort action is not without remedies to challenge the meritless lawsuit. But a word of caution. The anti-SLAPP statute is a screening process, not a panacea. It will not shield any lawyer from the consequences of pursuing an objectively untenable (i.e., frivolous) action on a client’s behalf. (See, e.g., Chavez v. Mendoz, supra, 94 Cal.App.4th at p.1086 [“plaintiffs met their burden to establish a probability they would prevail on their malicious prosecution claim”]; Paul v. Friedman, supra, 95 Cal.App.4th at pp. 865-868 [conduct outside of official proceedings and breach of confidential settlement not privileged].) Several factors may account for the alarming increase in derivative lawsuits by non-clients against lawyers during the past few years. These include the overall “decline in civility among lawyers” ( giving rise to members of the legal profession being more willing to sue one another for perceived indignities), and stereotypes How to AvoidDerivative Tort Claims
Adopt and maintain a client-intake checklist. Screen your clients and your cases carefully. Beware the “hostile” client who views litigation as a vendetta.
Stay away from cases outside your expertise. Don’t just take “any case that comes through the door.” This increases your chances of being sued by clients – and by third parties.
Thoroughly investigate the facts and the law. Don’t overplead your client’s case – the subsequent derivative lawsuit might be based upon any claims that were not “objectively tenable.”
Remain “civil.” Avoid acrimonious exchanges with opposing parties and counsel, and Rambo-style litigation tactics. Don’t overplead your client’s case – the subsequent derivative lawsuit might be based upon any claims that were not “objectively tenable.”

about “greedy” trial lawyers clogging the courts with “frivolous” lawsuits. (ABA Standing Committee on Lawyers’ Professional Liability, Legal Malpractice Claims in the 1990s, Dec. 1996, at pp. 14, 22.) What can you do to protect yourself Adopt and maintain a client-intake checklist. Choose your clients and your cases carefully. Avoid cases outside your areas of expertise, and don’t just take “any case that comes through the door.” (Harry W.R. Chamberlain II, The Seven Deadly Sins: Why Attorneys Get Stung By Juries In Legal Malpractice Cases (2nd Quarter 2001) VERDICT 30 at pp. 32-33.) Thoroughly investigate the facts and the law before bringing a lawsuit. At a minimum, legal ethics and rules of court require that lawyers do so. (See Fed. Rule Civ. Proc. 11, 28 U.S.C.; Norton v. Hines (1975) 49 Cal.App.3d 917, 923-924; Bus.& Prof. Code § 6068(c); Prof. Resp. Rules 3-200, 3-700(C)(1)(a), (b).) Don’t overplead your client’s case – even if one or more claims were objectively tenable, the subsequent derivative lawsuit might be based upon any claim that was not. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 680.) When bringing or defending a lawsuit, avoid the temptation to get caught up in acrimonious exchanges and responding in kind to Rambo-style tactics. (See, e.g., Jarrow, supra, 97 Cal.App.4th at pp. 4-14.) Remember, that is why they call it “civil” litigation. Whether the anti-SLAPP procedure and other available defenses will be effective in stemming the tide of derivative litigation against California lawyers remains to be seen. Meanwhile, applying these techniques might help to reduce the real and ever-present threat of third party actions, and can minimize your exposure if they do arise.