The case raises the issue of whether filing a mandatory attorney fee arbitration proceeding can give rise to a malicious prosecution suit. I hadn't thought about that issue before. And even after Justice Brown posed the question, I still wasn't sure what the answer should be. When someone files and loses a fee arbitration proceeding, can the prevailing party sue them for malicious prosecution if that filing was with malice and without probable cause? The answer matters not only for which side gets to prevail on the merits, but also for which side gets to prevail on an anti-SLAPP motion, since (as the Court of Appeal holds) the filing of such a fee arbitration is an "official proceeding" under the anti-SLAPP statute. So there's real money at stake.
As I said, I didn't have a view one way or the other on this issue. Even after thinking about it a bit. You could see arguments both ways -- a fact that highlights that legal doctrine doesn't necessarily give you definitive answers to lots of questions.
Nonetheless, after reading Justice Brown's opinion, I was totally persuaded. Nope, no malicious prosecution suits. For all of the plethora of reasons she explains.
It's not that I can no longer see the other side. I still can. But I'm persuaded that the position that Justice Brown articulates is decidedly superior to the alternative. I concede that the procedural posture of this particular case -- an attorney who took $10,000 from a client to evaluate a medical malpractice lawsuit, didn't file anything, didn't return any of the money, defended a fee arbitration proceeding successfully, and then sued the client for malicious prosecution -- makes me somewhat inclined to the position advanced by the Court of Appeal, since an attorney defending against a fee dispute seems par for course and unlikely to require powerful tort remedies to sufficiently deter. But even in the abstract, and even if you switch around the parties (and have the lawyer file a fee claim against a client), I agree that the point of these things is to get matters resolved quickly and easily, and that the spectre of malicious prosecution suits would only muck things up.
So a very well done opinion by Justice Brown. A nice, definitive answer, and one that makes sense.
