PROFESSIONAL LIABILITY UPDATES
written by Jessica B. Rudin

Janik v. Rudy, Exelrod & Zieff, 04 C.D.O.S. 5507; 
August 27, 2004 [Issue 192] 

Division Three of the First District holds that class counsel owes a duty of care to members of a certified class with respect to claims beyond the scope of the class certification order. 

Siebel v. Mittlesteadt (2004) 118 Cal.App.4th 406; 
August 17, 2004 [Issue 191] 

Division Six holds that post-judgment settlements do not automatically preclude a finding that a matter terminated favorably. 

Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624
May 20, 2004 [Issue 183] 

The District denies an attorney’s Special Motion to Strike a legal malpractice action under California’s Anti Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute. “Garden variety” attorney malpractice is not conduct in furtherance of a right of petition or free speech. 

Moore v. Shaw (2004) 04 C.D.O.S. 1698; 
May 13, 2004 [Issue 181] 

The Second District denies an attorney's Special Motion to Strike under California's Anti-Strategic Lawsuit Against Public Participation statute where the complaint alleged the attorney engaged in intentional or negligent breach of trust in the estate planning context. Drafting a document related to a private transaction that is not connected to a judicial proceeding or an issue of public interest is not an act in furtherance of a right of petition or free speech. 

Zamos v. Stroud (2004) 04 C.D.O.S. 3369; April 21, 2004 [Issue 178] 

The California Supreme Court holds that an attorney may be liable for malicious prosecution if he or she commences an action with probable cause, but continues to pursue the action after discovering facts that negate probable cause. 

Jarrow v. LaMarche (2003) 31 Cal.4th 728; January 29, 2004 [Issue 170] 

The California Supreme Court holds that malicious prosecution actions brought against litigants and their attorneys are subject to scrutiny under California's anti-Strategic Lawsuit Against Public Participation statute. 

Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719; November 10, 2003 [Issue 164] 

In the context of a disqualification motion the Fourth District confirms that the existence of an attorney-client relationship is a question of law evaluated by the totality of the circumstances. The relationship cannot be created by the declaration of one party; it requires mutual assent. However, managing agents of a corporation are "represented parties" for the purpose of California Rule of Professional Conduct Rule 2-100's bar on ex-parte contacts with a party known to be represented by counsel. 

Olson v. Cohen (2003) 106 Cal.App.4th 1209; October 22, 2003 
[Issue 161] 

A law corporation that fails to register with the State Bar of California is not required to disgorge legal fees where there is no allegation that any client either relied upon the existence of a corporate entity or was injured by the law corporation's delinquency. 

Dahl v. Rosenfeld (9th Cir. 2003) 316 F.3d 1074; August 22, 2003 
[Issue 159] 

The U.S. District Court of Appeals for the 9th Circuit holds that when a legal malpractice claim requires a court to interpret a Collective Bargaining Agreement it is preempted by §301 of the Labor Management Relations Act. 

1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568; August 20, 2003 [Issue 158] 

The California Court of Appeal for the Second District holds CCP § 425.16 will apply to cases arising out of constitutionally protected activity, even where it is alleged the activity was illegal. 

Zamos v. Stroud 03 C.D.O.S. 5831; July 25, 2003 [Issue 157] 

The Second Appellate District, Second Division holds an attorney can be liable for malicious prosecution for continuing to prosecute a lawsuit after the discovery of facts showing the case has no merit. 

Bird, Marella, Boxer & Wolpert v. Superior Court (Reiner) 106 Cal.App.4th 419; July 11, 2003 [Issue 156] 

The Second District distinguished prior case law that mandated a criminal malpractice plaintiff establish actual innocence and post conviction relief. In a dispute over an unconscionable or fraudulent fee, the actual innocence requirement does not apply. 

Viner v. Sweet (June 23, 2003, No. S101964)
<http://www.courtinfo.ca.gov/courts/supreme>;
June 23, 2003 [Issue 155] 

California Supreme Court holds that plaintiffs in transactional malpractice actions must prove that but for the malpractice, there would have been a more favorable result. 

Ferguson v. Lieff, Cabraser, Heimann & Bernstein (Cal. Supreme Court No. S104444); June 9, 2003 [Issue 154] 

California Supreme Court holds that attorneys cannot be liable for "lost" punitive damages. 

Fletcher v. Carlyle Davis 03 C.D.O.S. 1495; (Cal. Supreme Court has granted review of this case) May 28, 2003 [Issue 153] 

A law firm does not need to establish the existence of an unwritten lien in a separate action prior to filing claims against third parties who disburse the proceeds of a settlement or judgment with knowledge of the lien. 

Navellier v. Sletten (2003) 106 Cal.App.4th 763; May 15, 2003 
[Issue 152] 

On remand from the California Supreme Court, the First District holds that the litigation privilege does not automatically bar a complaint based on the Constitutionally protected activity of the right to petition. It also holds that the litigation privilege will not preclude liability for breach of contract. 

Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladston 03 C.D.O.S. 2402; April 14, 2003 [Issue 151] 

The Second District, Division One, holds that an attorney retained to provide coverage advice can be liable to a claimant for making a fraudulent statement about coverage. 

Ferguson v. Lieff, Cabraser, Heimann & Bernstein LLP (Cal. Supreme Ct. No. S104444); March 14, 2003 [Issue 149] 

California Supreme Court hears oral argument on whether attorneys can be liable for “lost” punitive damages. 

White v. Lieberman (2002) 103 Cal.App.4th 210; February 7, 2003 
[Issue 146] 

The Second District holds that the statute of limitations for malicious prosecution actions arising from cases reversed on appeal begins to run on the date remittitur is entered. It also holds that attorneys may rely upon C.C.P. § 425.16, the anti-SLAPP statute, to attack malicious prosecution actions. 

Morrison v. Rudolph (2002) 103 Cal.App.4th 506; January 3, 2003 
[Issue 143] 

The Fourth District holds that unless an attorney is aware of specific factual errors, he or she will not be liable for malicious prosecution for initiating an action based on a client’s version of events. 

Mix v. Tumanjan Development Corporation (2002) 102 Cal.App.4th 1318; November 26, 2002 [Issue 142] 

An attorney in propria persona may recover reasonable attorneys’ fees incurred for attorneys assisting him, even if they do not appear as counsel of record. 

Stroock & Stroock & Lavan v. Tendler 02 C.D.O.S. 9838; November 21, 2002 [Issue 141] 

The Second District holds that the malicious prosecution "interim adverse judgment rule" does not apply to a ruling that does not address the merits of the underlying claim. 

Ross v. Creel Printing & Publishing Company, Inc, et al. (2002) 100 Cal.App.4th 736; November 4, 2002 [Issue 139] 

The First District holds that a violation of the Rules of Professional Conduct cannot form the basis for an intentional infliction of emotional distress claim. 

Swat-Fame v. Goldstein 02 C.D.O.S. 7873; October 2, 2002 [Issue 136] 

The Second District holds that an attorney is entitled to rely on the representations of his or her client in determining whether probable cause exists to file a claim. 

Mattel, Inc. v. Luce, Forward, Hamilton & Scripps and James B. Hicks (2002) 99 Cal.App.4th 1179; September 18, 2002 [Issue 134] 

The Second District holds that settlement of an underlying suit may not operate to negate favorable termination and may not support an “anti-SLAPP” motion to strike. 

Lynch v. Warwick (2002) 95 Cal.App.4th 267; September 3, 2002
[Issue 133] 

“Actual innocence” requirement for legal malpractice claim against criminal defense attorney applies regardless of whether former client claims damages from a wrongful conviction, a longer sentence, or attorney fees. 

Ted L. Vanzant v. DaimlerChrysler Corporation (2002) 96 Cal. App. 4th 1283; August 26, 2002 [Issue 132] 

The Second District holds that there can be no liability for continuation of a properly initiated existing proceeding. 

Wilson v. Parker, Covert & Chidester 02 C.D.O.S. 69109; Jarrow Formulas, Inc v. Sandra Hogan LaMarche 02 C.D.O.S. 2706 (rev. granted 6/12/02); August 5, 2002 [Issue 130] 

The California Supreme Court holds that denial of a C.C.P. § 425.16 special motion to strike establishes probable cause in a subsequent malicious prosecution action. The Court accepts a decision permitting an attorney to utilize a C.C.P. § 425.16 special motion to strike in a malicious prosecution action. 

Gomez v. Vernon (9th Cir. 2001) 255 F.3d 1118; July 22, 2002 [Issue 128] 

The Ninth Circuit Court of Appeals has affirmed sanctions ordered after counsel acquired and used an inmate’s privileged and confidential materials. 

STI Outdoor LLC v. Superior Court (2001) 91 Cal.App.4th 334; July 15, 2002 [Issue 127] 

A necessary disclosure to a third party does not waive the attorney-client privilege. 

Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156; July 1, 2002 [Issue 122] 

Probable cause must support even “superfluous” causes of action to avoid potential malicious prosecution liability. 

Home Insurance Company v. Zurich Insurance Company; May 14, 2002 [Issue 121] 

The Third District holds that an attorney’s misrepresentation of his client’s insurance policy limits is privileged under California Civil Code §47(b). 

Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2002) 115 Cal.Rptr.2d 342; May 2, 2002 [Issue 120] 

On May 1, 2002, the California Supreme Court voted unanimously to review a First District decision that punitive damages recoverable in an underlying case are not recoverable as compensatory damages in a legal malpractice action. 

Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015; May 1, 2002 [Issue 119] 

The Fourth District decides that pro se litigants cannot recover attorney’s fees as a discovery sanction. 

Chavez v. Mendoza (2001) 94 Cal.App.4th 1083; April 3, 2002 [Issue 118] 

A malicious prosecution action may be the subject of a special motion to strike under CCP §425.16, the anti-SLAPP statute. 

Samuel Myers v. The Bennett Law Offices, et al. (9th Cir. 2001) 238 F.3d 1068; February 21, 2002 [Issue 116] 

A Utah law firm that ordered a credit report on Nevada residents had sufficient contacts to warrant personal jurisdiction in Nevada. 

State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600; February 11, 2002 [Issue 115] 

Straightforward admission of fault by attorney is required to qualify for mandatory relief from default under Code of Civil Procedure § 473. 

Ferreira v. Gray, Carey, Ware & Freidenrich, et al. (2001) 87 Cal.App.4th. 409; November 30, 2001 [Issue 113] 

The Fourth District has decided that two traditional elements of malicious prosecution actions will be stringently applied. In one case the court held that a voluntary settlement after a verdict negates the favorable termination element. In another case, which has been accepted for review by the California Supreme Court, the court ruled that summary judgment or other dispositive motion in the underlying case establishes probable cause as a matter of law. 

Aguilar v. Lerner (2001) 1 C.D.O.S. 5392 (rev. granted 10/17/01); October 23, 2001 [Issue 111] 

The First District permits enforcement of a binding fee dispute arbitration provision in an attorney-client fee contract where the client fails to avail himself of the protections of the statutory non-binding fee dispute arbitration provisions. The Supreme Court has accepted the case for review.  

Foxgate Homeowner’s Association Inc., v. Bramalea California Inc. (2001) 26 Cal.4th 1; October 9, 2001 [Issue 110] 

The California Supreme Court has held that there are no exceptions to the mediation privilege of Evidence Code §§ 1119 and 1121. Mediation communications may not be disclosed in any subsequent proceeding by the mediator or by any party to the mediation. Conduct during mediations may be disclosed by a party, but not by the mediator. 

Solin v. O’Melveny & Meyers, LLP; September 10, 2001 [Issue 108] 

The Second District has decided that an attorney who retained the services of counsel to advise him about representation of his own clients cannot pursue an action for legal malpractice over his client’s objections if to do so would intrude upon the attorney-client privilege. It also decided that shareholder derivative suits for legal malpractice do not violate the rule against assignment of legal malpractice actions. Nevertheless, they are barred because shareholders cannot waive the attorney-client privilege on behalf of the corporation.