New Legal Malpractice Case

Legal Malpractice

I've been thinking for years that the anti-SLAPP statute (Code of Civil Procedure section 425.16) could create potential legal malpractice liability for California lawyers. Now it has. Last month, the Second District Court of Appeal published a new case addressing whether attorneys and law firms can be liable for not discussing with clients the potential risks and damages if a defendant files a successful anti-SLAPP motion to strike. In the video above I briefly discuss this new case. My summary of the case is below.

New Legal Malpractice Decision 

Mireskandari v. Edwards Wildman Palmer LLP (2022) _ Cal.App.5th _ , 2022 WL 1055417: The Court of Appeal reversed in part, and affirmed in part, the trial court's order granting defendants' motion for summary judgment to plaintiff's complaint against his former lawyers for professional negligence, breach of fiduciary duty, and breach of contract. The complaint alleged, among other things, that defendants failed to advise plaintiff of California's anti-SLAPP statute before filing a complaint on plaintiff's behalf against a newspaper publisher in California federal court. Plaintiff alleged the lawsuit predictably drew a successful anti-SLAPP motion to strike, which caused him to incur substantial attorney fees litigating and losing the motion and deprived him of discovery he intended to use in a disciplinary proceeding pending against him in the United Kingdom, ultimately resulting in the loss of his law license, substantial fines and fees, and bankruptcy. The Court of Appeal agreed with the trial court that plaintiff's damages claim based on the adverse outcome of the U.K. disciplinary proceeding was too speculative to create a question of fact for a jury, but those were not plaintiff's only damages. The trial court erred in concluding that plaintiff could not establish causation under the case-within-a-case method because he could not prove he would have prevailed in his lawsuit against the publisher but for defendants' negligence. The Court of Appeal concluded that an attorney owes a duty of care to advise a client of foreseeable risks of litigation before filing a lawsuit on the client’s behalf, and therefore plaintiff alleged a viable claim that, but for defendants' negligent failure to advise him of the risks associated with a potential anti-SLAPP motion, he would not have filed his lawsuit in California and would not have incurred damages from litigating and losing an anti-SLAPP motion. (C.A. 2nd, April 8, 2022.)