f/k/a archives . . . real opinions & real haiku

April 20, 2004

Lawyers Liable for Continuing a Bad Case

Filed under: pre-06-2006 — David Giacalone @ 9:21 pm

just say no  It seems obvious to me, but, the California Supreme Court finally got around yesterday to declaring that “an attorney may be held liable for malicious prosecution when he commences a lawsuit properly but then continues to prosecute it after learning it is not supported by probable cause.” See Zamos v. Stroud, 04-19-04 (New York Lawyer, Lawyers Can Be Sued Over Bad Cases, 02-20-04).  George Wallace covered the case at length yesterday at Declarations & Exclusions

  • Personal War Story: Circa 1990, here in the NY Capital Area, I won a motion for sanctions against a personal injury defendant for trying to shift blame in an auto accident to a motorist who was stopped 200 feet behind the struck car.  The lawyers continued the claims for four years after their client had pled guilty to vehicular manslaughter (caused, after he had downed approximately 14 beers and then drove a U-Haul truck over a hill, across to the opposite lane, striking a disabled auto pulled off on the shoulder, killing two and badly injuring a third victim).  Soon after winning almost $20,000 in sanctions for frivolousness, I was congratulated on the victory by a prominent local plaintiff’s personal injury lawyer, who was not connected to the case.  However, he shook his head and added that it was a bad result — bad policy to sanction lawyers for not withrawing a claim after they find there is no basis in fact or law for the allegation.   I bet my favorite p/i lawyer, Evan Schaeffer would disagree, good guy that he is.


  1. David: Thanks for the plug, I think. Your proposition reminds me of the sort of question I like to pose to experts who are appearing for, say, a drug company defendant. “Would you agree with me that a drug company should not overstate the benefits of its drugs to doctors or the public? Or understate their risks?” The obvious answers: yes and yes. How can anyone disagree? Even so, every so often an expert will give you the deer-caught-in-a-headlight look and start stammering. That’s the sort of fun result that causes me to ask the question in the first place.

    Now you propose something similar to me: Should a lawyer withdraw a complaint after finding there is no basis in fact or law for the lawsuit? I feel a little like those experts just above–“Hmmm, maybe David’s trying to trick me.” But the answer is obvious: Of course a lawyer should withdraw a complaint after finding there is no basis in fact or law for the suit. (Although in reality, it’s the client’s call too. If the client wouldn’t allow it, I’d have to ask the judge to allow me to withdraw from the case. Sometimes, a judge says no. And when it’s the *defendant* who’s saying there is no basis in fact or law for the lawsuit–well, most defendants say that, so I take it with a grain of salt).

    As for your own story, I support you wholeheartedly, policy concerns and all. And if your response is to say, “It’s fine to say that a lawyer should withdraw a complaint when it has no basis in fact or law–but should it be *required*?” My response: Yes, it should be required, subject to the few concerns I stated above.

    Comment by Evan — April 21, 2004 @ 3:49 pm

  2. I meant it as a compliment/plug (although I know that getting the reputation for being an honest lawyer will lose you a few prospective clients). 
    “No basis in fact or law” and “no probable cause” are pretty tough thresholds to meet (I’m not talking about merely feeling a case is no longer as strong as it first appeared), and the test should be the lawyer’s good faith assessment.
    I think we’re in total agreement on this one.  Cool.

    Sometimes, I might ask hard questions, but I never try to ask trick questions.  If I do, please point it out.  [By the way, have you stopped beating your partner?]

    Comment by David Giacalone — April 21, 2004 @ 4:41 pm

  3. Greetings, all:

    As the California Supreme Court makes clear, this decision places us solidly within the majority/restatement rule disapproving those who continue patently pointless litigation beyond the stage at with its pointless becomes truly patent. As David has said and Evan seems to agree, the standard here in California (and I think elsewhere) is that a case will not be deemed to lack probable cause — at inception or later — unless no reasonable attorney would believe the matter to be tenable. A reasonably high standard, and cases that are so clearly unfounded really should be dropped as quickly as the attorney is able.

    I have not compared California law to other states’ on a related wrinkle: here, we need to keep track of each theory/count/cause of action, because an attorney or client can be held responsible for the unsupportable pursuit of one portion of an otherwise supportable case — including an untenable fraud count in a perfectly respectable breach of contract case, for instance. With this new decision, there is extra pressure brought to bear on attorneys to (a) not plead what they don’t actually expect they can prove and (b) visit and revisit the full range of claims contained in the controlling pleadings at any given moment.

    All told, these rules all strike me as the right ones to apply, but they do raise the level of continuing attention that attorneys for plaintiffs need to lavish on their cases.

    Now gentlemen, do you think there should be a claim for “malicious/wrongful defense” – assertion and vigorous litigation of defensive theories that are known to be at odds with (O! woeful phrase!) the ‘true facts’?

    Comment by George Wallace — April 22, 2004 @ 1:31 am

  4. Hello, George, thanks for stopping by, when you could be relaxing with your favorite form of nourishment and inspiration. 
    I’m always a little bit worried when the “reasonable attorney” standard is evoked — fearing that it means the ordinary attorney working in that particular specialty.  That’s why I like “no reasonable basis in fact or law.”  Such a defense would and should be deemed frivolous and subject to sanction (including fines, attorneys fees) in states where I have practiced.  If a well-constructed statute could be formulated to deal with such defenses when done “maliciously”, it would seem fair and appropriate policy (so long as it does not generate frivolous charges of malicious defense).

    Comment by David Giacalone — April 22, 2004 @ 12:19 pm

  5. […] —  The public needs to be better educated about the rules against frivolous claims and the sanctions and penalties that can be imposed against parties making or continuing such claims.  […]

    Comment by shlep: the Self-Help Law ExPress » Blog Archive » frivolous pro se litigants: who’s to blame? — September 22, 2006 @ 1:57 pm

  6. I live in Florida and read with much interest the case of Zamos v. Stroud, for I find myself in a similar situation. Unfortunately for me, Florida is more than a little behind the times in this regard. Several years ago, I filed a Bar complaint against an attorney here in Florida with regard to his “unlawful billing and collection practices”. The associate that I originally hired in this attorney’s firm, testified under oath that her boss, who is the managing partner of the firm, would routinely bill .5 hours or $175.00 to a clients file after taking just 30 seconds to “answer a simple yes or no question”. In addition to the aforementioned, this attorney also billed me $400.00 to render a simple computer generated statement for his firms services. When I contested his bill he sought to coerce payment by filing what was later determined to be a false police report of a crime. The attorney claimed that I had made threats of physical violence directed at he and his family. This attorney sought to elevate that alleged crime to the level of a felony hate crime by claiming that these alleged threats of physical violence were made by me “because he is Jewish”. The attorney neglected to mention to the Police that all communications between us were in writing via e-mail. The Police investigated his allegations, read the e-mails and found the allegations to be “without any merit whatsoever”.

    Not being sure of who regulated such conduct and wanting to be sure that I addressed my grievance to the proper authority, it was originally my intention to copy the complaint to the Florida Bar, the Federal Trade Commission, the Attorney General and the Office of the Governor (Jeb Bush). Consequently, I made a CC notation to that effect at the bottom of the complaint. However, for whatever reason, I never did copy the FTC, AG or the Governor. The attorney subsequently sued my wife and I for defamation for the comments made in the Bar complaint. Claiming that we had published them outside of the grievance process by copying the complaint to the aforementioned government agencies. In suing us, the attorney effectively ignores the provisions of the first amendment. In an effort to prove that the complaint had not actually been copied to those agencies, we filed a subpoena duces tecum to all of the aforementioned agencies. Not one of them was able to produce any evidence that they had in fact received a copy of the complaint which the attorney claimed was published to them.

    We subsequently succeeded in getting their first, second, third, fourth and 99% of their fifth amended complaints dismissed. However, the Judge singled out three items from this attorney’s lawsuit that in her opinion were “actionable”. This, in spite of the fact that those comments were made in a subsequent Bar complaint that clearly was not copied or published to anyone outside of the Bar grievance process. The Florida Bar’s web site cautions would be complainants that you cannot be “successfully sued” for complaining about an attorney, provided that you don’t publish your complaint “outside the grievance process”. They are probably correct, provided of course that you have $100,000 plus dollars in your war chest to defend yourself against those attorneys who would use the Court system to silence their critics and extort a settlement in their favor. However, if you do not have the funds to mount such a defense then an attorney so inclined can successfully run you into the ground and thereby force a settlement in their favor. In the similar case of Tobkin v. Jarboe the court stated in their opinion that, “We also recognize the inequitable balance of power that may exist between an attorney who brings a defamation action and the client who must defend against it, which in turn creates the potential for attorney intimidation of Bar complainants. Attorneys schooled in the law have the ability to pursue defamation litigation through their own means and with minimal expense when compared with the Bar complainants. Conversely, the cost of litigation coupled with the risk of liability in defending against such an action could be enough to discourage an individual from bringing a meritorious complaint. The mere possibility of chilling valid complaints would undermine public confidence in this Court’s ability to regulate and discipline unethical members of The Florida Bar.”

    SLAPP (Strategic Lawsuit Against Public Participation) legislation similar to the California statute was introduced here in Florida in 1993. After languishing in the legislature for more that ten years it was gutted by the special interest groups (particularly developers) and 90% of those who would benefit from such a law were excluded from its provisions. The legislature decided that only those SLAPP lawsuits that were filed by the government would enjoy the protections afforded by this law. At present we have a motion for summary judgment that has been repeatedly delayed while the Plaintiff seeks discovery. We are now into depositions (18 of them so far) and have been for almost a year. If I were unable to write the checks each month to cover my defense then I would have surely lost this fight by default long ago. If anyone should be held accountable for malicious prosecution it should be the attorney who prosecutes an untenable cause of action for whatever reason. For if anyone should know better it is the attorney who is schooled in the law and thereby enjoys an unprecedented access to the courts at minimal expense to them and the financial devastation of their adversaries. It is my belief that 90% of the liability for such actions should be taxed to the attorney who prosecutes the case.

    Comment by David Johnson — December 18, 2006 @ 11:44 am

  7. I am the individual who posted the above comment. After four years in litigation at a cost of more than a quarter of a million dollars our motion for summary judgment was finally granted. We learned in discovery that the plaintiff’s counsel had filed a freedom of information request with regard to the alleged publication of the Bar complaint outside of the grievance process and that in doing so he learned that there was no publication. Unfortunately, knowledge of that fact did nothing to prevent their continued prosecution of their contrived claims of defamation. While we are now the prevailing party we can draw little satisfaction from our victory as it has cost us our entire life savings. Unless we can come up with another $300,000 we have no recourse for the malicious prosecution and abuse of process by these attorneys.

    Comment by David Johnson — January 14, 2009 @ 8:51 am

  8. Thanks for letting us know about the decision in your case. All I can offer is sympathy for your plight. It sure makes Loser-Pay look better and better, with — as you have suggested — a lot of the liability to reimburse the winner falling on the lawyer.

    Comment by David Giacalone — January 14, 2009 @ 5:51 pm

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