New Legal Malpractice Case

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Legal Malpractice

I've been thinking for years that the anti-SLAPP statute (Code of Civil Procedure section 425.16) could create potential legal malpractice liability for California lawyers. Now it has. Last month, the Second District Court of Appeal published a new case addressing whether attorneys and law firms can be liable for not discussing with clients the potential risks and damages if a defendant files a successful anti-SLAPP motion to strike. In the video above I briefly discuss this new case. My summary of the case is below.

New Legal Malpractice Decision 

Mireskandari v. Edwards Wildman Palmer LLP (2022) _ Cal.App.5th _ , 2022 WL 1055417: The Court of Appeal reversed in part, and affirmed in part, the trial court's order granting defendants' motion for summary judgment to plaintiff's complaint against his former lawyers for professional negligence, breach of fiduciary duty, and breach of contract. The complaint alleged, among other things, that defendants failed to advise plaintiff of California's anti-SLAPP statute before filing a complaint on plaintiff's behalf against a newspaper publisher in California federal court. Plaintiff alleged the lawsuit predictably drew a successful anti-SLAPP motion to strike, which caused him to incur substantial attorney fees litigating and losing the motion and deprived him of discovery he intended to use in a disciplinary proceeding pending against him in the United Kingdom, ultimately resulting in the loss of his law license, substantial fines and fees, and bankruptcy. The Court of Appeal agreed with the trial court that plaintiff's damages claim based on the adverse outcome of the U.K. disciplinary proceeding was too speculative to create a question of fact for a jury, but those were not plaintiff's only damages. The trial court erred in concluding that plaintiff could not establish causation under the case-within-a-case method because he could not prove he would have prevailed in his lawsuit against the publisher but for defendants' negligence. The Court of Appeal concluded that an attorney owes a duty of care to advise a client of foreseeable risks of litigation before filing a lawsuit on the client’s behalf, and therefore plaintiff alleged a viable claim that, but for defendants' negligent failure to advise him of the risks associated with a potential anti-SLAPP motion, he would not have filed his lawsuit in California and would not have incurred damages from litigating and losing an anti-SLAPP motion. (C.A. 2nd, April 8, 2022.)

My Publications

California Case Summaries Monthly™:  short summaries (one paragraph), organized by legal topic, of every new civil case published California courts every month.  

California Case Summaries Quarterly™: short, organized summaries of every new civil case, published by California courts every quarter, with the official case citations. 

Annual Practice Area Case Summaries™: Every January, we publish Annual Practice Area case summaries for the areas of Employment, Real Property and Torts with short, organized summaries of every new civil case in each practice area (plus additional important legal topics), with the official case citations. 

California Case Summaries Annual™short, organized summaries of every new civil case published the year before, with the official case citations, published every January.  

Join Our Email List: To get on our email list to find out when we'll next make new subscriptions available, and to get my free summaries of the 22 new civil cases published by the California Supreme Court in 2021, click here.

Mediation, Arbitration and Referee Services

I help attorneys and their clients by serving as a mediator, arbitrator and referee with ADR Services, Inc. I handle cases in the areas of business, commercial, employment, insurance bad faith, insurance coverage, land use, landlord-tenant (commercial and residential), legal malpractice, medical malpractice, personal injury, real property and wrongful death via Zoom services throughout California and also in-person services. I've been a California civil trial lawyer since 1980 and a member of ABOTA since 1995. I've represented both plaintiffs and defendants in a wide variety of civil cases including the areas listed above. If you'd like to work with me, please contact my case manager at ADR services, Haward Cho, [email protected], (619) 233-1323.  

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Lawyers (whether new or experienced) can rapidly create their dream law practices with the help of a master mentor who can help them think deeply, focus on what is essential, avoid distractions, develop their skills, avoid mistakes, answer their questions, and continuously improve their organization and systems. I offer an online video course and individual sessions to provide this much needed master mentoring to attorneys. For my lawyer master mentoring services visit my website at, email me at [email protected], or call me at (619) 990-4312.

Stay safe and healthy.

Best regards,
Monty A. McIntyre, Esq.
California Case Summaries™
Mediator, Arbitrator & Referee
Lawyer Master Mentoring™
CA Civil Trial Attorney Since 1980
ABOTA Member Since 1995
Past President San Diego County Bar Assn., SD ABOTA Chapter
Phone: (619) 990-4312. Email: [email protected] 

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