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.

Defendant in a Malicious Prosecution Case, an Associate Working Under Principal’s Supervision, May Not Avoid Liability Through a SLAPP Motion Even when the “associate is put into a difficult position by questioning a more experienced attorney’s choices.”

Limited partners in a real estate development company brought a malicious prosecution action against the property owners and their attorney for joining the limited partners in the underlying action for the improper purpose of pressuring the limited partners to pressure the general partner to settle the matter.  (Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522.) 

Both the defendant partner, Mahaffey, and junior associate, Ghormley, filed Anti-SLAPP motions claiming they prosecuted the case with probable cause and in the absence of malice.  The Court of Appeal confirmed both SLAPP motions were properly denied.    

Specific to Ghormley, “limited partners presented evidence that Ghormley signed 25 of the Roe amendments, and her name appeared in the captions of the five deposition notices served on the limited partners. She also communicated with [limited partner’s counsel], telling him, when asked why the limited partners were being sued for breach of a lease to which they were not parties, that ‘Doug Mahaffey has plans for the Limited Partners.’” (Id. at p. 1545.) 

In a statement that cannot be ignored, the Court of Appeal stated

We recognize that an associate attorney is not in the same position as an attorney associating into a case. There is a clear imbalance of power between an often younger associate and an older partner or supervisor, and situations may arise where an associate is put into a difficult position by questioning a more experienced attorney's choices. Nonetheless, however, every attorney admitted to practice in this state has independent duties that are not reduced or eliminated because a superior has directed a certain course of action. (See Bus. & Prof. Code, § 6068.) Thus, the fact that she was following a superior's instructions is not a valid defense to malicious prosecution.

(Id. at p. 1546.)   The Court did state “that the case against Ghormley was not overwhelming, but her actions were sufficient to raise an inference of malice” because  she “knew enough about the case to speak to opposing counsel and to propose dismissal in exchange for withdrawing a 170.6 motion—an action that strongly gives rise to an inference that she knew the case had no merit and was being prosecuted for an improper purpose.” (Ibid.)

The published decision confirms every attorney is responsible for their own actions and own obligations under the Rules of Professional Conduct and Business and Professions Code. 

-- Andrew 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.**