Anti-SLAPP statute does not protect Calif. lawyer from malicious prosecution claim

A California appeals court ruled Friday that a malicious prosecution lawsuit against a Los Angeles-based attorney may proceed, reversing a lower court's holding that the state's anti-SLAPP statute protected the lawyer.

Christopher A. Cole, the former president of a software company, sued attorney Raymond P. Boucher, his law firm and a number of other attorneys for defamation and malicious prosecution, which is a claim that alleges abuse of the legal process. Boucher and the other lawyers represented — in different capacities — businessman Robert Reese Bains III and other shareholders in their 2003 fraud lawsuit against Cole and Peregrine Systems Inc. A lower court dismissed that suit in 2009, finding that Cole, as an outside director during the time of the fraud, was not liable for the company's illegal financial activity.

Cole's defamation suit stemmed from an amended complaint in the shareholder suit, posted on one of the attorneys' websites, that Cole claimed falsely accused him of fraud. The lower court dismissed the claims against Boucher and attorney Robert P. Ottilie under the California anti-SLAPP statute because they were not liable for posting the allegedly defamatory material to the website. Cole appealed the ruling as to the malicious prosecution claim only and did not raise the defamation issue with the higher court.

Short for strategic lawsuits against public participation, SLAPPs are tools for intimidating and silencing critics that succeed not on their legal merits but by effectively preventing opponents from exercising their constitutional rights to speak out or petition the government. The scope of protected activity varies widely among states with anti-SLAPP statutes, although all aim to help alleviate a chilling effect on speech by providing journalists and others with a means to expeditiously terminate unfounded claims before the defendants incur large legal fees. Commonly recognized as the nation’s strongest anti-SLAPP law, the California statute protects “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”

In ruling on a motion to strike under the anti-SLAPP statute, a California court will first determine whether the defendant established that the lawsuit arose from protected speech or petition activities. If so, the judge will grant the motion unless the plaintiff can show a probability that he will prevail on the claim. Although SLAPPs are often brought under the guise of a defamation claim, they could just as easily come as accusations of trademark infringement, emotional distress or any of a number of other claims, including malicious prosecution.

The California Court of Appeal (2nd Dist.) in this case found that, by demonstrating that there was no basis for the shareholder lawsuit, Cole "made the minimum showing required to survive the Boucher defendants‘ and Ottilie‘s anti-SLAPP motions." The court rejected Boucher and Ottilie's arguments that they were not liable because they served merely as "standby counsel" in the shareholders' lawsuit.

“Attorneys who appear on all of the pleadings and papers filed for the plaintiffs in the underlying case cannot avoid liability for malicious prosecution merely by showing that they took a passive role in that case as standby counsel,” the court said.

Cole's attorney, Leighton M. Anderson, said the opinion highlights the responsibility of all lawyers involved in a particular case.

“The Court of Appeal determined that all attorneys of record that are associated in representing a client in litigation share a duty to be certain that the case is supported by adequate legal and factual grounds at every stage of the preceding,” Anderson said.

Jonathan B. Cole, Boucher’s attorney, could not be reached for comment.

Related Reporters Committee resources:

· Dig.J.Leg.Gd.: Anti-SLAPP laws