An unintended consequence of California’s Anti-Strategic Lawsuit Against Public Participation statute (Anti-SLAPP), C.C.P. § 425.16, is the protection afforded attorneys against claims by non-clients. Enacted in 1992, it was designed to protect free-speech activities against retaliatory lawsuits, but it also covers constitutionally protected “petitioning” activity. Anti-SLAPP protection extends to attorneys representing clients in litigation-related activity. See, Briggs v. Eden council for Hope & Opportunity (1999) 19 Cal.4th 1106. It is now routine to file an anti-SLAPP motion whenever a non-client asserts litigation-based claims. The advantages to defendant attorneys include stayed discovery, plaintiff’s inability to amend the complaint, immediate appeal from a denial, and recovery of attorney’s fees to a prevailing defendant. It often provides a quick and inexpensive defense.

Anti-SLAPP motions involve a two-step process. The court decides whether the defendant has made a threshold showing the challenged cause of action is one arising from activity to further the constitutional right of petition or free speech. If so, the court then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Bergstein v Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 803.

When a cause of action involves both protected and unprotected activity, the court looks to the gravamen of the claim. The court must examine the specific acts of alleged wrongdoing, not just the form of the claim. Id. at 804.

Litigation-related conduct that is illegal as a matter of law is not protected by constitutional guarantees of free speech and petition, and not covered by the anti-SLAPP statute. Flatley v. Mauro (2006) 39 Cal.4th 299, 320. This is a narrow exception, and either the defendant must concede, or the evidence must conclusively establish, illegality. Malin v. Singer, (2013) 217 Cal.App.4th 1283, 1299.

Plaintiff’s evidence of the merits of a claim is often barred by privilege. For example, in Finton Construction, Inc., v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200 Plaintiff claimed the attorneys had received stolen property when clients gave their attorneys electronic files Finton claimed were stolen. Receipt of the files was a communicative act between attorney and client, covered by the litigation privilege, and could not support a claim against the attorneys.

The Anti-SLAPP statute, however, will not protect an attorney from a claim for malpractice by a client. Although a legal malpractice claim may be associated with litigation, attorney malpractice is not a protected right. The client does not sue because of the attorney’s petitioning activity, but because the attorney did not act competently.  The threat of malpractice does not chill advocacy but encourages attorneys to petition competently and zealously. Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532.

Jennifer Becker is certified by the State Bar of California, Board of Legal Specialization in Legal Malpractice, and is chair of BASF’s Legal Malpractice Section.  She is a partner at Long & Levit, and editor-in-chief of Long & Levit’s Lawyers and Judge’s Blog, www.longlevit.com/blog/.