CCP § 340.6 Applies to Malicious Prosecution Claims Against Attorneys

Connelly v. Bornstein, No. A152375 (D1d5 Mar. 28, 2019)

Code of Civil Procedure § 340.6 sets the statute of limitations for “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.” There was a lengthy split of authority as to whether § 340.6 applied to claims other than attorney malpractice. That split was largely resolved in Lee v. Hanley in which the Supreme Court said the statute goes beyond malpractice, but only to cases based on an attorney’s breach of a duty that exists by virtue of being an attorney. So if, for instance, an attorney punches a witness after a heated deposition, the ordinary battery statute of limitations will apply.

As I noted in my write-up of Lee, the question driving the split mostly concerned whether § 340.6 applied to a claim of malicious prosecution against a lawyer. But the facts of Lee involved a payment dispute, not malicious prosecution, so Lee did not totally resolve that question. That said, since everyone has a duty not to bring bogus litigation, it seemed like most malicious prosecution claims would not fall under § 340.6, unless they implicated some kind of professional obligation particular to lawyers.

The Court here states the Lee test right. “[T]he question is whether the claim, in order to succeed, necessarily depends on proof that an attorney violated a professional obligation as opposed to some generally applicable nonprofessional obligation.” But then it gets a little off track in suggesting that, because malicious prosecution by a lawyer looks a lot like malpractice, maybe Lee’s test shouldn't apply.

In any event, the court eventually finds its way back to the Lee test. It reasons that an action against a client for malicious prosecution is different than an action against that client's attorney. In particular, the client gets an advice of counsel defense. In such a case, the case against the attorney is based on an obligation to give competent advice about the law. That is a duty unique to lawyers, so § 340.6 should apply.

Problem is, the court doesn’t really parse that finely. It suggests that any malicious prosecution claim against an attorney is subject to § 340.6’s limitation period. But that doesn’t really jive with Lee. For instance, if both attorney and client bring a case based on made-up facts, there’s nothing special about the lawyer’s obligations that ’s implicated.

Affirmed.