April 27, 2006

Ask The Lawyer

You and your attorney may be held liable for maintaining a baseless suit

This week's question:
I have a case going on now in Superior Court in San Jose. My attorney tells me that I have no case and that I should accept a token settlement from the other side. She even tells me that my suit is baseless, "has no merit” and that if I lose, she and I could both be sued for malicious prosecution. This is insulting! Can this be?

Brooke B.
Almaden Valley

Dear Brooke,
First of all, I do not care to get in between you and your present attorney because I could then be accused of breaking up your attorney-client relationship. However, you do have the right to seek independent counsel and advice at any time and even to terminate your attorney for any reason.

Having said that, your present attorney may be absolutely correct in saying that she (as well as you) could be the target of a subsequent malicious prosecution suit if your present suit is completely groundless and brought maliciously.

In a 2004 case decided by the California Supreme Court, the Court held that an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit that was discovered to lack probable cause. The case is entitled Zamos v. Stroud.

The Zamos v. Stroud case is one of "first impression" as we say, meaning that it makes new law. In a unanimous decision written by Justice Janice Rogers Brown, the California Supreme Court ruled that lawyers could be sued for malicious prosecution if they continue to pursue a case after learning it isn't supported by probable cause.

In that case, Woodland Hills lawyer Jerome Zamos had filed a malicious prosecution action against his former client Patricia Brookes and her subsequent attorney, James Stroud. Zamos alleged that the two defendants persisted in pursuing a fraud action against him in spite of strong evidence that he had done nothing wrong.

The "strong evidence" included court transcripts from previous court hearings showing that Ms. Brooks had not been misled in any way. Even Los Angeles County Superior Court Judge Stephen Petersen told Ms. Brookes that she "couldn't have had a better lawyer" than Zamos.

The Court stated in part that: "To establish a cause of action for the malicious prosecution of a civil proceeding a plaintiff must plead and prove that the prior action:

- Was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's favor;

- Was brought without probable cause; and

- Was initiated with malice.

The Court also held that malicious prosecution "is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice."

Moreover, as the Court of Appeal in the Zamos case pointed out, "Holding attorneys liable for the damages a party incurs as a result of the attorneys prosecuting civil claims after they learn the claims have no merit also will encourage voluntary dismissals of meritless claims at the earliest stage possible."

You can read the California Supreme Court opinion in Zamos v. Stroud by logging on to:

http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/32/958.html. The opinion is dated April 19, 2004.

There is a minor modification dated June 9, 2004, at:

http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/32/1297b.html. However, the modification does not change the basic holding in the case.

So, in short, Brooke, your present lawyer has a right to be concerned about a possible subsequent suit for malicious prosecution—against you and her— if your present suit lacks merit and is baseless. You might want to think over her advice carefully. Good luck with your case. Maybe it can be settled after all.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.