Determining Whether a Lawsuit Challenging Attorneys' Professional Conduct Is a SLAPP
In Freeman v. Schack (2007) 154 Cal.App.4th 719, illustrates the proper analysis to determine whether a lawsuit challenging attorneys' professional conduct is a SLAPP (strategic lawsuit against public participation).
In that case, the plaintiffs sued their former attorney, Schack, for breach of fiduciary duty. The plaintiffs alleged that Schack had abandoned them and represented an adverse party in a lawsuit.
The trial court granted Schack's section 425.16 motion to strike on the ground that the plaintiffs' cause of action arose from Schack's protected litigation activity while representing his new client. The appellate court reversed. It explained:
"The fact plaintiffs' claims are related to or associated with Schack's litigation activities is not enough. 'Although a party's litigation-related activities constitute "acts in furtherance of a person's right of petition or free speech," it does not follow that any claims associated with those activities are subject to the anti-SLAPP statute. . . . A cause of action may be "triggered by" or associated with a protected act, but it does not necessarily mean the cause of action arises from that act. '" (Freeman, supra, 154 Cal.App.4th at pp. 729-730.)
In determining that the cause of action against Schack for breach of fiduciary duty did not arise from protected litigation activity, the Freeman court reasoned:
"The principal thrust of the conduct underlying plaintiffs' cause of action is not Schack's filing or settlement of litigation. Stated another way, the 'activity that gives rise to Schack's asserted liability' is his undertaking to represent a party with interests adverse to plaintiffs, in violation of the duty of loyalty he assertedly owed them . . . . 'If the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to any anti-SLAPP motion.' In our view, plaintiff's allegations concerning Schack's filing and settlement of . . . litigation are incidental to the allegation of . . . breach of fiduciary duty arising from his representation of clients with adverse interests." (Freeman, supra, 154 Cal.App.4th at p. 732.)