Malicious Prosecution Case Against Lawyers Dismissed


Sherry Zachary was sure that her brother Raymond had taken advantage of their mother. She was so sure that she hired California lawyers John L. Guth and Jeffrey T. Stromberg to file a lawsuit against Raymond. Eventually Raymond sued the lawyers—though not successfully.

The first lawsuit filed by Sherry’s attorneys was over the transfer of the family farm to Raymond shortly before the death of their mother, Miriam Zachary. Sherry (through her attorneys) alleged that Raymond had made misrepresentations to Miriam, had unduly influenced her, and had taken advantage of Miriam’s declining mental health.

Raymond demonstrated to the court that Miriam knew what she was doing and wanted him to have the farm, and the first lawsuit was dismissed a year after it was filed. Shortly thereafter, Sherry (and her attorneys) filed a second action against Raymond, alleging that he had borrowed $25,000 from Miriam and had not repaid it to her estate. Sherry sought half of the loan amount from her brother.

Nearly two years later, Sherry and the lawyers dismissed the second lawsuit without even taking it to trial. Then Raymond filed his own lawsuit, against Sherry and her lawyers.

Raymond alleged that Sherry’s lawyers should have known that her claims were groundless. If they did not actually know there was no basis, argued Raymond, they could have done a little checking and determined that the lawsuits should not have been filed in the first place. Failure to check up on the merits of the case before filing, Raymond insisted, amounted to malicious prosecution.

Lawyers Guth and Stromberg asked the court to dismiss the lawsuit, arguing that there was no evidence they actually knew the lawsuits were without merit. The trial court dismissed the complaints against the lawyers, and the California Court of Appeals agreed.

The appellate court ruled that it would be unreasonable to require lawyers to do their own full investigation before filing lawsuits on behalf of their clients. The standard for judging a lawyer’s behavior in these circumstances, ruled the court, is whether a reasonable lawyer would have thought Sherry’s claims were tenable. Zachary v. Gluth, November 7, 2003.

Even if a lawyer is not required to fully investigate a client’s claims before filing a lawsuit, no lawyer is permitted to file any pleading for an “improper purpose.” Arizona rules allow sanctions against a lawyer who files a complaint or motion as harassment, to increase costs or delay legal proceedings.

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