5.1.13

Anti-SLAPP, C.C.P. §425.16 – Attorney Activity Covered By

Case:

Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482

Issue:

Was a lawsuit brought by an attorney that claimed that another attorney had improperly solicited his client during a pending lawsuit and advised the client not to pay the suing attorney’s fees barred by the Anti-SLAPP statute, notwithstanding the commercial speech exemption from the statute?

Holding:

Yes.  The complaint “plainly arose” from the defendant-attorney’s communications with the client about pending litigation, and from the defendant-attorney’s conduct in enforcing a settlement agreement on the client’s behalf that the plaintiff-attorney had told the client had been repudiated by the plaintiffs in the underlying action.  The Court of Appeal found it irrelevant that some of the defendant-attorney’s communications took place while plaintiff-attorney was the client’s attorney -- communications which the client swore in a declaration submitted with the motion that the client, rather than the defendant-attorney, had initiated.  The communications still were “‘made in connection with an issue under consideration or review by a judicial body’. . . .”  (Id. at 489, quoting C.C.P. §425.16(e)(2).)

The commercial speech exemption to the anti-SLAPP statute applies to representations of fact made about a person’s business or that of a competitor for purpose of selling the person’s goods or services where the intended audience is an actual or potential customer.  (C.C.P. §425.17(c)(1),(2).)  The Court conceded that a literal reading of the statutory exemption could apply to the defendant-lawyer’s alleged conduct.  “Nonetheless, we conclude that a cause of action arising from a lawyer’s conduct, when the conduct includes advice to a prospective client on pending litigation, does not fall within the statutory exemption to the anti-SLAPP statute.  Any other conclusion would be inconsistent with the intent of the Legislature when it passed section 425.17, and would conflict with the client’s fundamental right of access to the courts, which necessarily includes the right to be represented by the attorney of his or her choice.”  (Id. at 490.)

Note:

The Court of Appeal emphasized that it was not holding that lawyers are categorically excluded from the commercial speech exemption.  “[W]e can envisage circumstances such as a ‘massive advertising campaign’ divorced from individualized legal advice under which the commercial speech exemption . . . conceivably might apply to a lawyer’s conduct. . . .  [But] this is a case in which legal advice to a specific client on a pending matter has occurred contemporaneously with the alleged solicitation of the client,” and, thus, not subject to the exemption.  (Id. at 492.)