Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Anti-SLAPP Motions Brought in Lawsuits Against Attorneys: Constitutionally Protected
Speech or Breach of an Attorneys’ Professional and Ethical Duties?

The anti-SLAPP statute addresses litigation arising from a defendant's exercise of the right of petition or free speech.  Under the anti-SLAPP statute, a defendant may address such claims by a special motion to strike.   (Code of Civil Procedure section 425.16(b).)   The granting of the motion results in a dismissal of the claims.

In ruling on a motion to strike under the anti-SLAPP statute, a two-step analysis is followed. The moving defendant has the initial burden to show the challenged cause of action arises from protected free speech or petitioning activity.  (Coretronic Corp. v. Cozen O’Connor (2011) 192
Cal.App.4th 1381, 1387.)  The burden is satisfied by demonstrating that the conduct providing the basis for the plaintiff’s claim arises from protected free speech or petitioning activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)  If the court finds that the moving defendant has satisfied this burden, then the burden shifts to the plaintiff to establish a probability of prevailing on the cause of action.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

The recent decision in Castleman v. Sagaser 2013 WL 1984360 (Cal.App. 5 Dist.) provides an example of an unsuccessful anti-SLAPP motion brought by an attorney who had been sued by a former client even though the lawsuit at issue followed protected speech and petitioning activity.

In Castleman, after an attorney consulted another attorney for personal reasons and thereafter was deposed in a lawsuit, the attorney’s former clients filed a lawsuit against the attorney for breach of fiduciary duty, breach of the duty of loyalty, conversion and invasion of privacy.  (Id. at *2.)  The former clients alleged that the attorney had used their confidential information in connection with his firm’s representation of them to encourage a meritless lawsuit to be brought against them, to draft a complaint against them and to represent, advise and assist the plaintiff who brought the lawsuit against them.  (Ibid.)

The attorney responded to the lawsuit with an anti-SLAPP motion arguing that each cause of action arose from constitutionally protected speech and petitioning activity, namely his communications with the attorney with whom he personally consulted and his deposition testimony.  (Id. at *3.)

Castleman found  that  Defendant  did  not  establish  his  initial  burden  of  showing  that  the challenged cause of action arose from free speech or petitioning activity.  The court declared that “[a] growing body of case law holds that actions based on an attorney’s breach of professional and ethical duties owed to a client are not SLAPP suits, even though protected litigation activity features prominently in the background.”  (Id. at *5.)  After discussing several authorities, the court concluded that the plaintiffs’ causes of action did not arise from protected activity under the anti-SLAPP statute.  (Id. at *6.)

The foundation of each claim is the allegation that [attorney] chose to align himself with respondents’ adversaries, in direct opposition to respondents’ interests, thereby breaching duties of loyalty and confidentiality owed to them by virtue of a prior attorney/client relationship. Respondents’ complaint specifically alleges that [attorney] violated the State Bar Rules of Professional Conduct, including rule 3-310, which is the principal thrust of their lawsuit.


The court found that although the attorney tried to characterize the claim as one arising from free speech or protected activity, the plaintiffs’ claims arose from the alleged breach of professional and ethical duties.  (Id. at *8.)  Pursuant to the applicable line of authorities, an attorney’s breach of professional and ethical duties owed to a current or former client does not constitute protected speech  or  petitioning  within  the  meaning  of  the  anti-SLAPP  statute.    (Ibid.)    Thus,  when assessing lawsuits against attorneys pursuant to the anti-SLAPP statute, courts look at the gravamen of the plaintiff’s claim, not simply whether the claim followed protected activity.

--Andrew A. Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**