Contreras v. Dowling (2016) – Anti-SLAPP Protection for Attorney-Client Relationships in the Face of “Unadorned” Allegations of Attorney-Client Conspiracy

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“We decline to infer Dowling’s concurrence in his clients’ acts from the mere existence of their attorney-client relationship. Contreras cites no authority holding that an attorney-client relationship is evidence of a conspiracy between the attorney and client, and our own research discloses none. Moreover, we share Dowling’s expressed concern about the implications of such a holding. He contends there will be a chilling effect on attorneys if their communicative acts can be placed outside the protection of section 425.16 by the unadorned allegation that they conspired in their clients’ torts. Contreras airily dismisses this concern, arguing ‘any chilling effect that conclusion may have on conspiracies between lawyers and their clients must be counted an unalloyed benefit.’ We are not so sanguine. ‘The fears of chilled speech and hindered justice are too much a part of our case law to be disregarded as unproved.’ . . . We refuse Contreras’s invitation to infer an attorney-client conspiracy from the mere existence of an attorney-client relationship.”

California’s Anti-SLAPP Law (Cal. Code Civ. Proc., §425.16) is designed to question, at an early stage of litigation, whether certain claims that arise from a defendant’s petitioning conduct has sufficient, minimal merit to proceed. If not, the defendant may use a special motion to strike to eliminate certain claims that the plaintiff cannot prevail on.

“Petitioning conduct” can refer to a fairly wide-range of a defendant’s exercises of free speech rights. When that defendant is also an attorney, and the conduct is closely connected with her provision of legal advise in the context of an attorney-client relationship, this activity should fall squarely within the ambit of the anti-SLAPP statute.

Nonetheless, the landlords in the controversy underlying Contreras v. Dowling engaged in activity that allegedly constituted wrongful eviction. And, because they had counsel at the time of the alleged tort, the tenant sued the landlords for the wrongful eviction and sued the attorney, Dowling, for “conspiracy” to commit the tort.

Understandably, then, Dowling filed an anti-SLAPP motion, seeking to strike the claims pointed at his petitioning conduct – i.e., advising his clients on matters relating to litigation. Bizarrely, the trial court denied his motion, awarding sanctions. The landlords were sued, in part, because their son hired a locksmith and allegedly entered the property without authority. When deposed, he stated that he did this on the advice of counsel. The trial court found that “aiding and abetting an illegal entry is not protected activity within the meaning of . . . section 425.16”.

Looking beyond the “unadorned allegation” of conspiracy, the First District Court of Appeal found that Dowling did no more than provide legal advice for his clients: “As stated above, conspiring in or aiding and abetting tenant harassment is merely the cause of action Contreras asserts. In deciding whether her cause of action arises from protected activity, however, our focus is not on such labels but rather on Dowling’s actual activities. Looking at the allegedly wrongful conduct itself and disregarding the form of action within which it has been framed, we see Dowling’s activities are all centered in his role as counsel for the Butterworths and Stuart.” Or, in other words, “the application of section 425.16 cannot reasonably turn on how the challenged pleading is organized”.

The court also went on to find that the tenant could not show a likelihood of prevailing on the merits, because of the litigation privilege. “As far as the applicability of the litigation privilege is concerned, this case is not a close one. The privilege has been held to cover precisely the type of communications at issue here, such as a lawyer’s discussions with clients about potential litigation, the filing of pleadings, and letters to opposing counsel.”

Ultimately, the court was highly sensitive to the chilling effect of scrutinizing allegations of conspiracy stemming from an attorney’s provision of legal advice: “We refuse Contreras’s invitation to infer an attorney-client conspiracy from the mere existence of an attorney-client relationship.” For now, attorneys should feel free to continue providing legal advice.