Anti-Slapp Statutes: A Defense for Lawyers in Liability Cases
DATE: February 2006

by David Grossbaum

Many liability claims are brought against lawyers for their conduct in representing clients in litigation or in proceedings before governmental bodies. These can take the form of claims for defamation, malicious prosecution, abuse of process, intentional interference with contractual relations or negligence, among others. While adversaries often bring these claims, sometimes they are brought by clients.

Numerous states have either statutory or common-law doctrines to protect attorneys from liability for conduct in litigation. Nonetheless, one of the more powerful and effective defenses for lawyers is based on statutes prohibiting Strategic Lawsuits Against Public Participation (“anti-SLAPP” statutes). These statutes typically allow a defendant to file an early motion to dismiss, force the plaintiff to make a strong showing as to the merits of the case at an early stage in the proceeding, provide for the award of attorneys fees to the defendant for a successful anti-SLAPP motion to dismiss, and allow for an interlocutory appeal if the motion to dismiss is denied. Therefore, a defense based on the anti-SLAPP statute may have significant advantages over other defenses available to attorneys.

ANTI-SLAPP STATUTES

Many states have passed anti-SLAPP statutes, including California, Georgia, Louisiana, Maine, Massachusetts, Minnesota, New York, Pennsylvania, Rhode Island, and Washington. It is important to look at the terms of the statute in the applicable state to see specifically what it provides, as there are significant differences between the statutes.

The basic purpose of an anti-SLAPP statute is to preclude lawsuits brought by large corporations against individual citizens who are opposing the corporation’s activities. These lawsuits are frequently used to intimidate citizens and stifle their opposition. For example, if a retail giant wants to open a large box store in a quiet residential neighborhood, the residents may commence litigation against the store, or may petition the local planning or zoning board to stop the development. The retailer may retaliate by bringing an action against the residents alleging that their lawsuit against the store has caused the store damages. Because the retailer has far greater resources to commence and continue litigation than will the residents, the likelihood is that the residents will withdraw their lawsuit and their objections.

As the California legislature said in the preamble to its anti-SLAPP statute, “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 redress of grievances. The legislature finds and declares that it 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.” Cal. Code. Civ. Proc. §425.16(a). Because of the remedial purposes of these statutes, states usually interpreted their anti-SLAPP statutes broadly.

In order to assert an anti-SLAPP defense in a claim against a lawyer, the lawyer must be able to show that the cause of action being brought against him or her arises from an act in furtherance of “a person’s” right to petition or right of free speech under the state or federal constitutions. Many of the anti-SLAPP statutes define the right to petition or of free speech to include any oral or written statements that are made in connection with any matter or issue that is under consideration or review by any legislative, executive or judicial body. The right to petition and right to free speech can also include statements that are designed to encourage consideration of an issue before such governmental bodies, or statements made to enlist public participation in the effort to seek such review.

If the lawsuit is based on the defendant’s right to petition or of free speech, he may file a motion to strike or dismiss the suit. Typically, such motions can be brought shortly after the filing of the suit, sometimes within 60 days after service of the complaint. Once the defendant has established that the basis of the suit is the exercise of the right to petition or of free speech, the burden is upon the plaintiff to establish that there is a “probability” that the plaintiff will prevail on the claim. Some states require the plaintiff to show that the defendant’s purported exercise of the right to petition or of free speech that is the basis for the lawsuit was without any factual or legal support and that the defendant’s acts caused actual injury to the plaintiff. Thus, the anti-SLAPP motion is preferable to an ordinary motion to dismiss because the burden of proof on an ordinary motion to dismiss is solely on the defendant.

In deciding an anti-SLAPP motion to dismiss, the court will consider the pleadings and supporting or opposing affidavits submitted by the parties. This is another advantage over the usual motion to dismiss, where the court will only consider the complaint, and will take as true all of the well-pleaded facts in that complaint.

Yet another significant advantage is the provision for fee-shifting that may exist under an anti-SLAPP statute. If the defendant is successful in bringing the anti-SLAPP motion, he or she may be entitled to recovery of attorney’s fees. Where, as in some states, a defendant’s statutory right to recover fees from the plaintiff for bringing frivolous litigation does not apply if the plaintiff is representing himself, the anti-SLAPP statute may provide a way to deter frivolous pro se suits. If, however, an anti-SLAPP motion to dismiss was frivolous or presented simply to cause unnecessary delay, the defendant may be liable for the attorney’s fees incurred by the plaintiff in opposing the anti-SLAPP motion to dismiss.

Sometimes the statutes provide that the hearing on the anti-SLAPP motion to dismiss must be scheduled promptly, within 30 days after service of the motion to dismiss, and that all discovery proceedings are stayed pending the outcome of the motion. In some states, the denial of an anti-SLAPP motion to dismiss is immediately appealable, where the denial of any other motion to dismiss would not be.

THE APPLICATION OF ANTI-SLAPP STATUTES TO ATTORNEYS

The first hurdle that attorneys face when asserting defenses under an anti-SLAPP statute is that they are usually being sued for asserting their client’s right of free speech or right of petition, rather than their own rights. Thus, plaintiffs faced with anti-SLAPP motions frequently raise the argument that the attorneys have no standing under the anti-SLAPP statute. The courts that have addressed this issue have routinely found that attorneys have standing and can use the anti-SLAPP statute as a defense to the same extent as their clients could use it.

The policy reason for this is sound. If this were not the case, the citizen who is the plaintiff in the underlying suit against the corporation could not later be a defendant in a lawsuit brought by the corporation, but his lawyer could be. If the corporation could sue the citizen’s attorney, it could squelch the citizen’s opposition by depriving the citizen of legal representation. As the Massachusetts Appeals Court held, “[s]uch suits directed against the attorneys who represent petitioning parties are as likely to exert a chilling effect on petitioning activities as suits directed against the parties themselves, and the cost to attorneys and their clients if such suits cannot promptly be dismissed are just as likely to impede the client’s right to petition, not to mention their right to be represented.” Plante v. Wylie, 63 Mass. App. Ct. 151, 824 N.E. 2d 461 (2005).

The California Court has come to the same conclusion. Soukup v. Stock, 15 Cal Rptr. 3d 303 (Ct. App. 4th Dist. 2004), review granted, 20 Cal. Rptr. 3d 175 (2004); Self Health Resource Center v. Grell, 2003 W.L. 21145824 (Cal. App. 1st Dist. 2003). A court in Georgia appears to have also allowed an attorney to utilize the anti-SLAPP statute as a defense. Land v. Boone, 265 Ga. App. 551, 594 S.E. 2d 741 (2004). It may be that the dismissal is one without prejudice, and that the case can be re-filed against the attorney if the plaintiff can circumvent the anti-SLAPP defense. Id.

Claims against lawyers for petitioning governmental bodies on behalf of their clients are frequently brought by the clients’ adversaries in the governmental proceedings. Nonetheless, courts have permitted attorneys to assert the anti-SLAPP defense against claims by their own clients. Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton, 133 Cal. App. 4th 658, 35 Cal. Rptr. 3d 31 (2005)(claim brought by bankruptcy trustee for client).

In at least one case, the court assumed, without deciding, that disciplinary proceedings brought against an attorney were subject to an anti-SLAPP defense if the disciplinary proceedings were based on the lawyer’s assertion of his own or his client’s right to petition or right of free speech. In the Matter of the Discipline of an Attorney, 442 Mass. 660, 815 N.E. 2d 1072 (2004). In this matter, the disciplinary board sought to sanction an attorney for engaging in conduct prejudicial to the administration of justice. He was accused of trying to intimidate the state fire inspector in a fire damage lawsuit by submitting the inspector’s deposition testimony to his superior officer. The attorney stated that the testimony demonstrated the inspector’s incompetence, and he argued that he was concerned about the inspector’s job performance as to the fire damage at issue in the case he was litigating, and also in future fire cases. The Massachusetts Supreme Judicial Court found no violation of the disciplinary rules and that, even assuming the anti-SLAPP statute applied, the attorney had failed to demonstrate that the disciplinary board lacked a substantial basis for bringing the disciplinary action.

LIMITATIONS ON THE ANTI-SLAPP MOTION TO DISMISS

Because anti-SLAPP statutes were designed to prevent intimidation and the chilling of the exercise of the right of free speech and to petition, the anti-SLAPP defense is confined to cases in which those issues are implicated. Attorneys have tried to expand the types of cases that are subject to the anti-SLAPP defense without success.

To begin with, courts are careful to make sure that the basis of the lawsuit against the attorney is the right to petition or of free speech, and have denied anti-SLAPP defenses where the petitioning or speech activities are collateral to the claim. For example, in a case involving an attorney’s alleged breach of duty in making a premature distribution of trust assets, this did not qualify for an anti-SLAPP defense. Moore v. Shaw, 116 Cal. App. 4th 182, 10 Cal. Rptr. 3d 154 (2004).

Additionally, the statutes, either by their terms or through interpretation, do not necessarily apply to private attorneys who are representing governmental entities in proceedings. This is because the attorney is not seeking to vindicate an individual citizen’s right to petition or right of free speech. Hayes v. Zaleznik, 2002 WL 640258 (Mass. App. Div. 2001). Moreover, certain violations of the ethical rules by attorneys, such as conflicts of interest or the disclosure of confidential information, do not necessarily trigger the anti-SLAPP defense, even if these acts take place during litigation,. The reason for this is that the violation of an ethical rule, by itself, is evidence of negligence and may be a breach of duty, and this does not depend on any subsequent conduct of the attorney in litigation or otherwise. Benasra v. Mitchell Silverberg & Knupp, LLP, 123 Cal. App. 4th 1179, 20 Cal. Rptr. 3d 621 (2004) and cases cited.

Moreover, in a case where the attorney allegedly failed to take any steps to respond to discovery requests during litigation, the later suit by the client against the attorney was not subject to dismissal under the anti-SLAPP statute because it involved nothing more than the attorney’s failure to take steps to preserve his client’s right to petition and free speech and not affirmative steps taken to further those interests. Jespersen v. Zubiate-Beauchamp, 114 Cal. App. 4th 624, 7 Cal. Rptr. 3d 715 (2003).

CONCLUSION

In states where an anti-SLAPP statute exists and provides significant procedural and substantive advantages over other means for dismissal, attorneys should seriously consider filing an anti-SLAPP motion to dismiss. This often provides an avenue for a speedy resolution of the case in the attorney’s favor and may provide the opportunity to recover the attorney’s legal fees from the plaintiff.