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Kenneth Feldman, Alex Graft Publish Daily Journal Article on 2021 Attorney Conduct, Malicious Prosecution, and Legal Malpractice Matters

Los Angeles, Calif. (January 11, 2022) - Los Angeles Partner and National Co-Chair of Lewis Brisbois’ Legal Malpractice Defense Practice Kenneth C. Feldman, along with San Francisco Partner and Vice-Chair of Lewis Brisbois’ Legal Malpractice Defense Practice Alex A. Graft recently published an article for the Daily Journal titled "2021 In Review: Cases Involving Lawyers." This is the 10th year in a row they have published such year in review articles. The article reviews cases from the last year in which California appellate courts not only adjudicated malicious prosecution and legal malpractice claims, but also addressed attorneys' incivility.

The authors open the article by observing that "In these polarizing times, civility is too often lacking – and in 2021, California appellate courts made clear they were not too pleased about it." Noting that attorney behavior "must continue to be a positive example for society at large, and not the other way around," Messrs. Feldman and Graft then go on to discuss cases involving attorney decorum, malicious prosecution, and legal malpractice issues.

Among the attorney conduct cases that the authors describe is a matter in which an attorney impugned the integrity of the court in a brief by contending that the court favored a litigant due to the party's political clout. The court, in turn, fined the attorney for contempt and reminded the lawyer that "professional speech must always be temperate and respectful and can never undermine confidence in the institution." In another attorney conduct matter, the court reduced the attorney's fees due to a lawyer's lack of professionalism.

Next, in reviewing cases involving malicious prosecution claims, the authors describe a matter that demonstrated that malice on the part of a client will not necessarily be imputed to the attorney. In addition, they discuss a case in which the court determined that there was enough to show a probability of prevailing to defeat an anti-SLAPP motion as to all three elements of the malicious prosecution tort: (1) favorable termination; (2) lack of probable cause; and (3) malice. The authors also describe a matter that "confirmed the bright line rule that an underlying individual settlement cannot be relied upon to establish the favorable termination element that is required in a suit for malicious prosecution."

Finally, Messrs. Feldman and Graft address legal malpractice matters, including a case filed by a fitness celebrity from "The Biggest Loser" against Greenberg Traurig, which is set to go to trial in June. The additional malpractice matters that the authors discuss included causation questions related to certain actions by the attorney defendants as well as disputed expert testimony. The authors close the article by noting the continuing trend of courts publishing cases that address attorney decorum, stating, "here's to hoping the future brings cases which focus more on duty, breach and causation issues and less on attorney behavior."

Messrs. Feldman and Graft are certified specialists in legal malpractice law by the California State Bar Law Advisory Commission. Mr. Feldman was the chair of the California State Bar Legal Malpractice Law Advisory Commission from 2018-2019. He is also the co-author of the California Legal Malpractice & Malicious Prosecution Liability Handbook. His practice focuses on the direct representation of insurers and their insureds in professional liability actions.

Mr. Graft regularly defends attorneys and other professionals, including insurance agents and brokers, accountants, architects, real estate agents and inspectors, as well as licensed security officers, in litigation matters. His practice also includes defense of life insurance companies, government entities, industry-leading hospitality companies and franchises, as well as common interest developments, including homeowner associations, in general litigation matters.

You can read the full article as a PDF here or on the Daily Journal website.


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