January 25, 2016
Notice to Clients of Attorney Departure Not Likely Protected Speech in California
Earlier this month, California’s Fourth District Court of Appeal agreed with an Orange County trial court that several emails sent by a departing partner to clients and former clients announcing his departure to a new firm did not qualify as protected speech under anti-SLAPP laws. Although the Court of Appeal’s opinion was unpublished, the Court provided a detailed analysis of what constitutes protected speech in the context of attorney departures. The opinion also underscores that the anti-SLAPP statute has very limited utility in attacking claims related to partner departures.
In August 2014, two attorneys at WHGC announced their departure and plans to open a northern California office for the law firm of Fish & Tsang LLP. Before leaving for the Fish firm, one of the departing attorneys sent email correspondence to 16 clients and former clients, 7 of whom had active litigation matters, announcing their departure. Among the details allegedly contained in the emails were general terms about the opening of the new office, informing recipients of the “right to choose the law firm and attorneys with whom [they] work,” and that the departing attorneys would “undertake to support any necessary transition” whether the clients elected to stay with WHGC or move to the Fish firm. (WHGC v. Van Loben Sels G051302 – Unpublished Opinion, Pg. 3.) Shortly after their departure, WHGC filed suit against the departed attorneys and the Fish firm for breach of contract and various torts, including misappropriation of trade secrets and intentional interference with contractual relations and with prospective economic advantage. (WHGC v. Van Loben Sels, Orange County Sup. Ct. Case No. 30-2014-00742585.) Although the factual underpinnings of the allegations go beyond the act of sending those client emails, the email correspondence the departing partner sent to the clients and former clients of WHGC is at the center of the Court of Appeal’s opinion.
In response to the litigation against them by their former firm, the attorneys filed a cross-complaint and then moved to strike WHGC’s complaint under California Code of Civil Procedure section 425.16 – the anti-SLAPP statute -asserting that the emails sent to clients and former clients about their departure were made in connection with an issue under review by a judicial body and furthered their right of free speech in connection with an issue of public interest. The trial court denied the anti-SLAPP motion, holding that the emails did not qualify for protection under either subdivision of the anti-SLAPP statute. The Court of Appeal ultimately affirmed that order.
The Court of Appeal’s opinion goes through a detailed analysis of the reasoning for denying the anti-SLAPP motion using the traditional two-part test. In this case, because the first prong of the test – whether the complaint or cause of action was “one arising from protected activity,” – was not met, the burden did not shift to WHGC to demonstrate its probability of prevailing on the merits. (Citing to Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) The Court of of Appeal noted that, “Appellants’ e-mails, announcing their move from one law firm to another, have no connection with any issue under review by a judicial body…‘A statement is made ‘in connection with’ a proceeding . . . if it relates to substantive issues in the proceeding and is directed to persons having some potential interest in the proceeding.” (See Burke, Anti-SLAPP Litigation (The Rutter Group 2015) § 3:76 p. 3-40.1.) Announcing a move from one law firm to another and reassuring clients that their matters will not slip through the cracks during the transition is not related to a substantive issue in their lawsuits.” (See Opinion, Page 8-9.) Nor did it involved an “issue of public interest,” according to the Court.
It is important to note that the issue of the propriety of the emails themselves –legally or ethically – was not before the Court of Appeal. As the Court stated in a footnote 5, “whether appellants had an ethical duty to notify their clients regarding their change of law firm is not relevant to the analysis of the first prong – whether the activity is protected. It goes rather to the plaintiff’s likelihood of prevailing;” an issue the Court never reached. Of course, in any planned departure attorneys have to carefully balance their obligations to their clients with those to their former firm. And determining how to best to notify clients of departures and changes in representation requires careful consideration for attorneys looking to transition their practices to new firms.
Dena M. Roche
O’Rielly & Roche LLP