Cole v. Patricia A. Myers & Associates, AFC

In Cole v. Patricia A. Myers & Associates, AFC (2012) 206 Cal.App.4th 1095, the court concluded that an attorney "whose name appears on all filings" in a case that may have been maliciously prosecuted cannot avoid liability for malicious prosecution "by intentionally failing to learn anything about" the case. (Id. at p. 1117.) In essence, Cole held that attorneys may be liable for malicious prosecution even if their only conduct is allowing their names to appear on pleadings. In reaching its conclusion, the court offered the following advice to attorneys who wish to avoid malicious prosecution liability when their role is only tangential or contingent. Attorneys in that position "may easily avoid liability for malicious prosecution . . . if they refrain from formally associating in the case until their role is triggered," or at least "refrain from lending their names to pleadings or motions about which they know next to nothing." (Cole, supra, 206 Cal.App.4th at p. 1119.) Essentially Cole drew a bright-line rule for purpose of liability for malicious prosecution--only attorneys of record can legitimately be considered to have control over the case with the power to decide how and whether to continue litigating. By contrast, this control is completely absent when an attorney acts merely as a consultant, but is not counsel of record.