Thursday, May 31, 2018

Attorney may violate right of publicity by naming client on website

Yeager v. Holt, 232 Cal. Rptr. 3d 693 (Ct. App. 2018)

Peter Holt and his law firm briefly represented Charles E. and Victoria Yeager and successfully sued Victoria Yeager to obtain his fees in an action known as Holt v. Yeager. Yeager then sued Holt, alleging professional negligence, misappropriation of name, and other claims. The court of appeals affirmed the rejection of Holt’s anti-SLAPP special motion to strike.

Yeager’s complaint alleged, among other things, that Holt failed to communicate about the costs and risks of further litigation, concealed facts and acted negligently in discharging professional obligations, such as by refusing to sign a declaration supporting a motion for attorney fees in Yeager v. AT&T Mobility, although Holt claimed in Holt v. Yeager that he was owed those same fees.  Yeager also alleged that Holt represented that the firm would work on a pro bono basis, but did not do so. The misappropriation claim alleged that Holt used Chuck Yeager’s name on the firm’s website without permission.  [The idea that the First Amendment allows the suppression of truthful statements about who was a client of a law firm, absent some agreement for confidentiality, is amazing to me, but apparently not to the California courts.]  The court in Holt v. Yeager rejected the claim that Holt had agreed to work pro bono.  The court here noted that this prior ruling might give Holt some pretty serious defenses, but not an anti-SLAPP victory.

Because the complaint referenced actions in the collection case, Holt argued that it was based on his protected right to petition, i.e., to sue for his fees. The trial court and the court of appeals disagreed.  The anti-SLAPP law only applies when the underlying action implicates protected speech or conduct. While suing someone is an aspect of the right to petition the government and is therefore a protected activity, “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”

Holt argued that his refusal to sign a fee declaration for use in federal court was protected activity, but whether that decision was or was not malpractice wasn’t resolvable in an anti-SLAPP case. Nor did this case chill expressive conduct.  “[W]e find it difficult to see how suing an attorney for malpractice, breach of contract, and using a client’s name or likeness for commercial purposes, attacks expressive activity for anti-SLAPP purposes…. [A] typical attorney malpractice suit is not subject to the anti-SLAPP procedures.”  Worse from my perspective, the court reasoned that “the fact that General Yeager is famous does not mean his claim of misappropriation of his name or likeness is itself a matter of public interest.” It’s not clear to me that this holding precludes future defenses to the underlying claim; the logic of the anti-SLAPP statute suggests otherwise, but with the right of publicity, who knows?

“Although there may be sound reasons why this case will not succeed, … filing an anti-SLAPP motion was not an effective way to litigate it.”

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