Cole v. Patricia A. Meyer & Associates: Standby Counsel who is of Record and Signed Pleadings is not Immune to Liability for Malicious Prosecution

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[author: Mark Hancock]

The California Court of Appeal (Second Appellate District, Division Four) recently held that attorneys who sign pleadings and agree to bring the case to trial cannot avoid liability for malicious prosecution merely by showing they acted as passive standby counsel.  The published decision is Cole v. Patricia A. Meyer & Assocs., 2012 Cal. App. LEXIS 671, filed June 8, 2012.

Plaintiff, director of a company that declared bankruptcy, sued defendants, the shareholders’ attorneys, for malicious prosecution and defamation.  The Los Angeles County Superior Court denied the defendant’s anti-SLAPP motion, but granted the same motion brought by standby counsel.  The Court of Appeal disagreed, concluding that it was error to strike the malicious prosecution claim against standby counsel. 

To support its holding, the Court of Appeal first explained that the plaintiff made a prima facie case by showing that the underlying fraud claims against him were not supported by probable cause.  See Bains v. Moores, (2009) 172 Cal. App. 4th 445.  Standby counsel (the “Boucher defendants”) argued that they were not liable for the malicious prosecution of the suit because they knew close to nothing about the case, even though they were attorneys of record and appeared in all the pleadings filed for the defendants.  The Court disagreed, citing the Rules of Professional Conduct 3-110(C), which state that experienced attorneys are required to know enough about the subject matter to judge the quality of their work. 

From a policy standpoint, the Court acknowledged that attorneys can divide the duties of conducting a case, but the division of labor does not diminish standby counsel’s liability when they fail to learn anything about a case that is maliciously prosecuted.  The Court noted that attorneys have the responsibility to avoid vexatious litigation, Cal. Code Civ. Proc. § 128.7(b), and accordingly, attorneys should make a preliminary determination as to whether probable cause exists to support the asserted claims.  In sum, the Court made it clear that attorneys’ ignorance of a claim’s merit is no excuse, and that, “Attorneys may [] avoid liability if they refrain from lending their names to pleadings or motions about which they know next to nothing.”