The California Court of Appeal for the Second District, in Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, held that a law firm’s claims against a lawyer for improper solicitation of a firm client were subject to California’s anti-SLAPP statute (C.C.P. §425.16) since the claims arose out of the lawyer’s communication with the client concerning pending litigation.  The court further held that the commercial speech exemption to the anti-SLAPP statute does not apply to conduct that includes the provision of legal advice to a prospective client regarding existing litigation.
Taheri Law Group sued attorney Evans for intentional interference with prospective economic advantage and business relations in connection with Taheri’s representation of a client, Sorokurs.  Taheri claimed that it had represented Sorokurs in numerous matters for some eighteen months and that while Sorokurs still owed Taheri more than $500,000 in fees, Evans induced Sorokurs to terminate his relationship with Taheri, refuse to pay Taheri’s fees, waive recovery of fees to which Taheri was otherwise entitled, and retain Evans as his counsel.
Evans brought a special motion to strike under California Code of Civil Procedure section 425.16 on the grounds that the actions alleged all took place in connection with pending litigation and efforts by Evans to enforce a settlement agreement on Sorokurs’s behalf.  Taheri argued that the anti-SLAPP statute did not apply since the gravamen of its claim against Evans was “client stealing;” and that even if the statute were applicable, the “commercial speech” exemption under section 425.17 barred the statute’s application.
Legal Analysis:
The court began by confirming that a cause of action arising from a defendant’s litigation activity can be an appropriate subject of a motion to strike, and that acts in furtherance of free speech or petition rights include communicative conduct such as the filing, funding, and prosecution of a civil action.  Taheri argued that its complaint arose from unprotected solicitation conduct because Evans’s communications took place while Taheri was still Sorokurs’s attorney.  The court found that such argument was “irrelevant to the question whether the lawsuit arises from communications ‘made in connection with an issue under consideration or review by a … judicial body …’ (§425.16, subd. (e)(2).)”
The court distinguished Taheri’s reliance on Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, which held that a cause of action for legal malpractice was not subject to an anti-SLAPP motion.  The court noted that in Jespersen, the alleged malpractice did not consist of an act in furtherance of anyone’s right of petition or free speech, but rather the lawyer’s negligent failure to serve timely discovery responses on behalf of the client.  Here, in contrast, the court found that Taheri’s causes of action against Evans arose directly from Evan’s communications with Sorokurs about the pending lawsuits.
The court also rejected Taheri’s argument that its claims were exempt from an anti-SLAPP motion under the commercial speech exemption to the statute (C.C.P. §425.17(c)).  The court acknowledged that, read literally, the alleged conduct by Evans could be viewed as falling within the scope of the exemption.  Nevertheless, it refused to apply the exemption.  The court reasoned that while disputes involving a lawyer’s advice to a prospective client may include an element of commercial speech, they are fundamentally different than the “commercial disputes” that the Legislature intended to exempt from the anti-SLAPP statute.  The statements and conduct from which Taheri’s claims arose, in essence, constituted advice by a lawyer on a pending legal matter.  The court further explained that a client’s right to receive legal advice relating to his representation, and to change lawyers if he chooses, would be thwarted if the court were to construe the commercial speech exemption to apply to lawyers providing legal advice, even if that advice includes an element of commercial speech.  The court emphasized that it was not holding that lawyers are categorically excluded from the commercial speech exemption, and noted that it could envision a situation – such as a massive advertising campaign divorced from the provision of individualized legal advice – where the exemption might apply to a lawyer’s commercial conduct.  Nevertheless where, as here, legal advice to a specific client on a pending matter occurs contemporaneously with an alleged solicitation of the client, the court concluded that the exemption may not be applied to the lawyer’s conduct.
Finally, the court reversed that portion of the trial court judgment awarding Evans his fees for prevailing on the anti-SLAPP motion, based on the fact that Evans had represented himself.  The court emphasized that under the California Supreme Court’s decision in Trope v. Katz (1995) 11 Cal.4th 274, and its progeny, a necessary predicate for recovering attorneys’ fees is the existence of an attorney-client relationship.  The court found these same principles applicable to the recovery of fees under the anti-SLAPP statute.  Thus, it held that a party, whether or not he or she is an attorney, who is not represented by counsel and who litigates an anti-SLAPP motion on his or her own behalf, may not recover attorneys’ fees under the statute.