Missed parts 1,2 and 3? Catch up:
Risk Management Tip: Understanding Duties to Third Parties, Part 1
Risk Management Tip: Understanding Duties to Third Parties, Part 2
Risk Management Tip: Understanding Duties to Third Parties, Part 3
The Litigation Privilege is Unevenly Applied to Attorney Conduct
Last month, we reviewed Flatley v. Mauro (2006) 39 Cal.4th 299, where the Supreme Court held that an extortion threat was illegal conduct, and the attorney could not have an expeditious dismissal under California’s anti-SLAPP statute. Since Flatley, courts have struggled to define conduct that crosses the line from proper, protected advocacy to overzealous criminal extortion.
In Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534 Leach retained Siegel to question his uncle Kleveland’s handling of his grandparents’ estate. Siegel aggressively filed and pursued a petition for breach of trust and Kleveland’s removal as trustee. During litigation, Siegel made a demand for a major estate asset in exchange for dismissal of the petition.
After Kleveland was vindicated, he filed a malicious prosecution action against Siegel. The Court, citing contentious litigation events and the settlement demand, held Kleveland demonstrated a lack of probable cause and malice. Id. at 554. Although Siegel asserted the litigation privilege should protect his conduct, the court failed to address this argument. Instead, the court went into great detail describing the conduct of the litigation. The court’s holding is questionable. Although the lawsuit was highly unpleasant, it appears to have been conducted within rules that apply to litigation, and should be protected by the litigation privilege. Nonetheless, Kleveland is a published decision, and a potential barrier to expeditious dismissal of third party claims against attorneys.
By contrast, in Malin v. Singer (2013) 217 Cal.App.4th 1283, an attorney’s demand letter was protected under the anti-SLAPP statute and the litigation privilege. Malin jointly owned a restaurant with Singer’s client. Singer sent Malin a demand letter and a draft complaint accusing him of misusing company resources to arrange sexual liaisons. Malin sued Singer and his client for civil extortion, violation of civil rights, and intentional and negligent infliction of emotional distress.
The Court rejected the notion Singer’s demand letter constituted extortion. It did not expressly threaten to disclose Malin’s alleged wrongdoings to a prosecuting agency or the public. The letter accused Malin of embezzling money and noted filing a complaint would reveal the use of the embezzled funds for a provocative purpose. The exposure of Malin’s activities would not subject him to any more disgrace than the claim he was an embezzler. Id. at 1299.
Further, the demand letter was protected under the litigation privilege. A protected pre-litigation communication must relate to litigation contemplated in good faith and under serious consideration. Id. at 1300. The sexual misconduct allegations were related to the demand letter that preceded the complaint, and were logically connected to litigation contemplated in good faith and under serious consideration when the letter was sent. Id. at 1301.
Remaining causes of action premised on wiretapping and computer hacking alleged illegal conduct. This illegal conduct was not constitutionally petitioning activity subject to scrutiny under C.C.P. § 425.16, and Malin could proceed with those claims. Id. at 1303.
Kleveland and Malin demonstrate the litigation privilege can be unevenly applied. Honesty, civility, and professionalism are the best prophylactic against claims of all kinds.
About the author:
Jennifer Becker is certified by the State Bar of California, Board of Legal Specialization in Legal Malpractice, and is Chair of BASF’s Legal Malpractice Section. She is a partner at Long & Levit, and the Editor-in-Chief of Long & Levit’s Lawyers and Judge’s Blog, www.longlevit.com/blog/, which is searchable by topic and case name.