Giving Legal Advice Prior To Filing Suit Is Protected By SLAPP And Barred By Litigation Privilege

In a recent unpublished case before the Second Dist. California Court of Appeal, Div. One., Kirkland v. Rappaport (B243607), the court expounded on the breadth of both the anti-SLAPP statute of CCP section 425.16 and the litigation privilege of CC 47(b) in a libel action where a lawyer or nonlawyer consultant writes a report for the client and his/her legal team to use in determining the feasibility of filing a proposed lawsuit.   This case illustrates the broad protection provided to attorneys and other consultants who advise their clients as to the merits of proposed litigation.

Kirkland, a Pacific Palisades attorney, filed a libel action against attorney Rapport and the Akin Gump S.F. firm.  San Francisco sole practitioner Douglas Rapport, formerly with the firm of Akin Gump, had written a report for a client, U.S. Aerospace, Inc., in which he concluded that Kirkland"likely violated his professional responsibilities as USAE's outside general counsel" and violated his fiduciary duties of loyalty, good faith, and care to the company.  The report was also critical of a Charles Arnold, a former consultant to the company.  Arnold was also a plaintiff in the libel action and Rapport was a defendant.

Disputing plaintiff's contention that no litigation was imminent, Justice Rothschild said, " the record shows that the USAE officers were seriously considering litigation against plaintiffs if Rapport's report confirmed their suspicion of plaintiff's wrongdoing.

Justice Rothchild observed that plaintiffs had no chance of prevailing on the merits in light of the litigation privilege; remarking:

"This is a classic case for the application of the litigation privilege because plaintiff are suing an attorney and his law firm based on confidential legal advice they supplied to a client in anticipation of litigation."

Taheri Law Group v. Evans (2006) 160 Cal.App.4th 482, 489-492 is a landmark case similarly on point.  Attorney A sued Attorney B for intentional interference with contract where client sought out attorney B for a second opinion as to how to settle his pending lawsuit.   Attorney B advised client to discharge Attorney A and not to pay his fees due to various breaches of the duty of care and fiduciary duties.  First, the court held the act of giving legal advice to a client in the course of pending litigation goes to the heart of the client and the lawyer's petition rights.  Hence, the cause of action arose from Attorney B's communications with the prospective client regarding Attorney A's actions during the pending litigation and that as a result, the claim was also barred by the litigation privilege.  Moreover, the court held that as a matter of public policy, the commercial speech exemption from the anti-SLAPP statute under CCP 425.17(c) did not apply even though the plain language would indicate otherwise.   - Legal advice to client during pending litigation.


The Kirkland case is one step removed from Taheri as it involved attorneys and consultants supplying advice to clients to assess the merits of filing a prospective lawsuit that was imminent and seriously contemplated.   No commercial speech issue was raised in Kirkland - legal advice to client in contemplation of lawsuit.  


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