By David Majchrzak and Edward McIntyre
19.4.1 Litinsky v. Kaplan (2019) 40 Cal.App.5th 970 – Court of Appeal of California, Second Appellate District (October 4, 2019)
Issue:
May a lawyer who reasonably relies on a client’s information nonetheless be liable for malicious prosecution?
Analysis:
No. Following dismissal of a civil complaint, the former defendant sued her litigation adversary and opposing counsel for malicious prosecution and intentional infliction of emotional distress. In the original action, the lawyer had relied on evidence primarily from her client. That evidence was contradicted by testimony from the defendant and some third parties but was not indisputably false.
The trial court granted the lawyer’s special motion to strike (anti-SLAPP motion), concluding that it was appropriate for a lawyer to accept the client’s version of events, so long as the factual allegations are reasonable, and continue advocating for the client’s claims so long as they are arguably meritorious.
The Court of Appeal affirmed. It concluded that a lawyer may reasonably rely on a client, even in instances when the client is the only source of evidence supporting a claim. Evidence that the client is lying is not unequivocal simply because there are no corroborating witnesses and there are several opposing witnesses. Whereas a lawyer may not present or rely evidence the lawyer knows to be false, that knowledge is not proven merely by the fact that the opposing party offers evidence of a different version of events.
David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.