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Filing a Frivolous Appeal is Not Malpractice as a Matter of Law

The court sanctioned a personal injury plaintiff, who was also a lawyer, for bringing a frivolous appeal. The personal injury plaintiff then sued the attorney who represented him in the appeal for malpractice. The trial court granted the personal injury plaintiff’s motion for summary judgment against his lawyer because it found no triable issue of material fact in the malpractice claim. He argued that any attorney who files a frivolous appeal commits malpractice per se. The trial court agreed and found that the attorney committed malpractice as a matter of law. In doing so the trial court applied both res judicata and collateral estoppel. Both doctrines precluded the attorney from arguing that the appeal was not frivolous, and that he had not committed malpractice. The plaintiff’s attorney then appealed, arguing the trial court erred in applying both doctrines.

When a client is sanctioned for filing a frivolous appeal, has the client’s attorney committed malpractice as a matter of law? The answer is no. Filing a frivolous appeal is not automatically malpractice as a matter of law.

The doctrine of res judicata provides that an existing final judgment is conclusive of the rights of parties in subsequent actions on all of the material issues that were determined. Res judicata requires a final judgement, that the prior issue was identical to the one presently in question, and the party against whom the res judicata plea was asserted was a party in the prior adjudication. A similar doctrine, collateral estoppel, applies to preclude re-litigation of the same issues, even if the causes of action are different. Collateral estoppel applies when two lawsuits arise out of the same factual situation, even if causes of action are different. The prior determination of the first lawsuit becomes conclusive with respect to that same issue in subsequent lawsuits.

Regardless of frivolity, the trial court in the malpractice case chose to sanction the personal injury plaintiff in part because of additional reasons. The court found that the personal injury plaintiff caused his own injury due to recklessness, and as an attorney himself should have “known better” than to pursue that complaint at all. The sanctions centered on the personal injury plaintiff’s action, not his attorney’s conduct. Res judicata did not properly apply because the present issue is different from any issue in the personal injury action. One issue was about sanctions and whether the appeal was frivolous, while the other was whether appellate counsel committed malpractice. The appellate attorney was not a party in the prior personal injury action. Thus neither claim nor issue preclusion should have applied. The question of malpractice as a matter of law was answered without a need to determine if the case was frivolous. Filing a frivolous appeal does not automatically equate to malpractice. The Supreme Court in In re Marriage of Flaherty admonished that counsel and clients have the right to present issues that are only “arguably correct, even if it is extremely unlikely that they will win on appeal.” The reasoning is to prevent a chilling effect on litigants’ rights on appeal. The court here reversed the summary judgment for the personal injury plaintiff.

Dawson v. Toledano (2003) 109 Cal.App.4th 387