Should Lawyers Be Held Accountable When Clients Sue Just To Punish Whistleblowers?

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Should Lawyers Be Held Accountable When Clients Sue Just To Punish Whistleblowers?

Image courtesy of sparkle-motion

Deep-pocketed companies have a long history of filing frivolous lawsuits with the sole intent of putting defendants through the expensive legal wringer. This sort of courtroom bullying is known as a Strategic Lawsuit Against Public Participation (SLAPP) and several states have Anti-SLAPP laws to deter this type of abuse. Plaintiffs that file these lawsuits can face penalties, but one question being considered by a California appeals court is whether plaintiffs’ lawyers should be held accountable for allowing their clients to behave badly.

What follows is the story of Val, a California woman who was sued for defamation in 2010 simply because her boyfriend copied their elderly mother’s legal aid attorney on an e-mail to a nursing home — and who believes that both the nursing home and its law firm are responsible for setting off a five-year legal battle that may not end anytime soon.

The Squeaky Wheel… Gets Sued

In March 2008, Val’s mother moved into a retirement nursing home in Reseda, CA; the same elder community in which Val’s grandmother had peacefully spent her final years.

Val, who had medical power of attorney for her mother, was also involved in the pre-admissions process with her mom and aided her in reviewing all contracts and other legally binding agreements. She claims that she also made it clear to the home that these sorts of matters were not to be discussed with her mother unless Val or her boyfriend David, a lawyer, were present.

Not long after moving in, Val’s mother — a retired school teacher with diabetes who had survived breast cancer — began reporting treatment at the home that appeared to be cause for concern.

For example, she says she was confronted in the lunch room by a nursing home staffer who allegedly demanded that she sign some documents without reviewing them. It was later revealed that this was a new resident’s agreement with the home that allegedly authorized the facility to intercept the mother’s mail and other parcels.

In all, the Dept. of Social Services found that at least a dozen of the complaints filed by Val or her mother were “substantiated,” with several resulting in citations against the home.

In July 2009, Val, her mother, and David all met with a lawyer at non-profit legal services group Bet Tzedek to discuss their concerns about the home. The Bet Tzedek attorney referred them to the California State Ombudsman’s office while also asking to be kept in the loop regarding further issues with the mother’s care at the nursing home.

The family and representatives for the home met with the Ombudsman. In that meeting and in a subsequent e-mail it was established that the attorney at Bet Tzedek was representing the family’s legal interests with regard to the home.

The ombudsman meeting did not, however, result in an improved relationship between the home and Val’s mother, with Val filing multiple grievances with the state’s Department of Social Services in the months that followed.

In Jan. 2010, the mother’s blood sugar level increased to 302. She and Val asked the home to page the mother’s endocrinologist, as per the instructions left with the home, but claim the home instead brought in a different doctor of their own choosing who prescribed a slow-acting insulin, allegedly without reviewing her charts or checking with her doctor, and without speaking to Val. When Val learned of this, she took her mother to the emergency room.

Five days later, the home instructed its lawyers at the well-regarded D.C.-based firm of Arent Fox to begin drafting a lawsuit against Val and David.

In the weeks that followed, Val — unaware of the impending complaint — made several visits to the home, some of them at the invitation of management to discuss matters involving her mother.

During a Jan. 26, 2010, Val and David’s meeting with the home’s director of nursing was interrupted by an administrator who accused them of trespassing and threatened to contact the police if they didn’t leave.

On Feb. 3, 2010 — but still before any lawsuit was filed — Val’s mother called to say that staffers were refusing to let her know her glucose levels. Val called the home and claims that a nurse explained to her that “They told me not to give you anything.”

That day, David wrote a four-sentence e-mail to an administrator at the home and copied the attorney at Bet Tzedek who had helped refer them to the Ombudsman’s office months earlier.

One week later — and the day after an on-site visit from the Dept. of Social Services that resulted in a pair of citations related to the mother’s complaints — Val and David were named as defendants in a suit that alleged trespassing, civil harassment, intentional interference with contractual relations, and — most bizarrely — defamation.

The alleged defamation didn’t involve any statements made to the media or anything published by either defendant. The only justification for this particular allegation was that David and Val somehow defamed the home by copying their legal aid lawyer on that Feb. 3 e-mail sent to the home, in spite of the fact that it’s a common practice to copy your attorney on message that involve legal matters.

Curiously, even though she did not write the e-mail in question, Val was still included as a defendant in that portion of the complaint.

Slapping Back

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Believing that the entire lawsuit was intended to punish them for blowing the whistle to state officials, Val and David asked the court for a quick dismissal of the complaint under California’s Anti-SLAPP statute.

With regard to the defamation claim, the court agreed, granting in April 2010 the motion to strike that cause of action from the lawsuit.

The home and its lawyers appealed that ruling, but in Nov. 2011 — more than a year after the original lawsuit was filed — an appeals court affirmed the lower court’s decision to strike the defamation claim.

“It is undisputed that seven months prior to the transmission of the e-mail in question, mother, daughter, and [David] all met with [the Bet Tzedek attorney] to discuss mother’s legal rights and remedies against the Home based on the ongoing disputes she was having with the Home,” wrote the court, adding that the very act of informing an elder rights attorney about the alleged violations “suggests that mother was considering her legal options against the Home at the time the e-mail was sent.”

Thus, the nursing home “could not show a probability of success on the defamation claim because it was barred as a matter of law.”

The home continued to pursue the other claims against Val and David before ultimately — at the urging of the trial court judge — dismissing all allegations in May 2013.

That means that Val and David spent more than three years — from Feb. 2010 to May 2013 — involved in a legal battle that was not even ultimately settled, but which was dismissed outright by the plaintiff.

Which is why, even before that lawsuit evaporated, Val and David filed one of their own in Jan. 2013, alleging malicious prosecution by both the home and Arent Fox.

In their original complaint [PDF] against the home and its attorneys, Val and David contend that the 2010 lawsuit filed against was “replete with knowingly false and misleading assertions,” like claiming that during the July 2009 meeting with the Ombudsman the couple admitted that the allegations against the home “were a bargaining tactic designed to secure a lower rent” for Val’s mom. They say no such statement exists on the audio recording of the meeting.

A Victory, However Brief

Image courtesy of Shawn Miller

Interestingly, Arent Fox’s response to the malicious prosecution complaint was to file an Anti-SLAPP motion of its own, pointing out that they were not the plaintiffs in the earlier lawsuit and arguing that Val and David had failed to make a prima facie case of liability.

But in Oct. 2013, the trial court denied the firm’s motion and allowed the suit to move forward with Arent Fox as a defendant.

“The causes of action alleged that defendants, including [Arent Fox] as attorney of record, brought the underlying defamation action without probable cause and with malice and that the action terminated in [Val and David’s] favor, wrote the judge at the time. “This is sufficient to state a cause of action.”

Arent Fox then filed a petition for a writ of mandate with an appeals court, which issued the writ in an expeditious manner, without giving the plaintiffs any opportunity to respond. The writ directed the trial court judge to either strike the claims against Arent Fox or explain why she should not be ordered to strike the claims. Rather than respond to the writ, the trial court agreed to strike the claims in question.

This had the effect of removing Arent Fox as a defendant in the case, though it did not impact the malicious prosecution lawsuit against the home.

Let’s Try This Again

Image courtesy of Renee Rendler-Kaplan

And so this decision has been appealed by Val [PDF], arguing that all that is required to make the prima facie case against Arent Fox is that “a reasonable attorney would not have filed and maintained the untenable defamation claim thinking it tenable, and/or would not have continued prosecuting this claim as further information became known.”

Additionally, the appeal contends that the state’s Anti-SLAPP statute should not apply to Arent Fox’s motion to strike as a matter of law. The section of the California code that allows for SLAPPback actions — like the lawsuit brought by Val and David — spells out that the “special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law.”

“[C]onclusive evidence that a violation of any state statute has occurred is sufficient to trigger application of the illegality exception and bar a defendant from seeking the protection of the anti- SLAPP law,” contends the appeals brief. “Here, defendants violated the law codified in the Business and Professions code and State Bar rules by looking for any specious reason to sue [Val], and actually suing her for a communication to her attorney that she did not even make. Even worse — they claimed that a client’s communication to her own attorney could be ‘defamation.'”

Bigger Than Just A Single Case

Image courtesy of F Delventhal

This appeal contends that there is much more at stake here than holding a law firm accountable for its part in a case that should never have been brought.

“The answer here has broad implications regarding access to justice and advice of counsel,” reads the appeal. “Should clients be afraid of copying correspondence with an offending party to their attorney, because they can be sued for defamation? Do people have to be careful what they say or show to their attorney about another person because it could conceivably provide grounds for defamation?”

This is particularly problematic, argue the plaintiffs, because the original complaint involved a communication with a lawyer at a non-profit legal aid organizations. These groups frequently work with low-income and elderly clients who are unfamiliar with or overwhelmed by the complexity of the legal system.

“People seeking non-profit legal aid should have access to legal counsel and advice, and should be able to inform and communicate with their attorneys without fear of repercussions,” the appeal explains.

In an amicus brief [PDF] filed by the Legal Aid Association of California in support of the appeal, the organization says that the decision of the lower court to strike the claims against Arent Fox “has the potential to threaten the ability of LAAC’s members to serve their clients effectively.”

It concludes, “This case… has broad implications for the delivery of legal services to the thousands of Californians that access free legal help every day and for the court system that could be inundated with cases that legal aid lawyers might otherwise have resolved prior to litigation.”

Oral arguments are slated to be heard on this appeal today. Regardless of the outcome, it seems likely that whichever side comes out on the short side of the ruling will try to climb up the next rung of the appeals ladder.

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  1. econobikerredux says:

    The corporation still wins even if the SLAPP lawsuit it brought is thrown out because the corporation’s employees are getting paid (while it is making profits) to participate in the lawsuit versus the poor defendant who must defend themselves using their own money and time. The corporate employees and their lawyers should be required to forgo their salaries and billings for the time they spent bringing the SLAPP lawsuit and give this money to the defendant. Then you would see SLAPP lawsuits ending…