• Ninth Circuit Finds Possible Malicious Prosecution by Attorney, But Not Client
  • May 15, 2008
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Estate of Tucker v. Interscope Records, Inc., 515 F.3d 1019 (9th Cir. 2008)

    Brief Summary
    The Ninth Circuit upheld the district court’s dismissal of malicious prosecution claims against adverse party litigants, but kept an adverse lawyer in the case.

    Complete Summary
    Plaintiff Cynthia Delores Tucker, an activist against “gangsta rap” music, sued Suge Knight and several other music executives, as well as their lawyers, for malicious prosecution. Tucker’s claim arose out of an earlier suit brought by Knight et al. against Tucker. Tucker had been tangentially involved in a business deal between Knight’s Death Row label and Time Warner. When the deal fell through, the music executives brought a laundry list of claims against Tucker. The litigation went on for three years until plaintiffs filed for voluntary dismissal.

    At the district court level in the present case, Tucker’s malicious prosecution claim was dismissed on summary judgment. On appeal, the Ninth Circuit upheld the dismissal for all but defendant David Kenner, an attorney for Knight’s record label.

    The Ninth Circuit court stated that the key issues before it were the requirements that the underlying litigation have been “initiated with malice,” and “brought without probable cause.”   (internal quotations omitted; emphasis in original).   Id. at 1038. Tucker’s two key pieces of evidence of malice by the parties were an advertisement, which arguably called for her elimination, and rap lyrics that denigrated her. The court held that this evidence was not probative for two reasons. First, the article and the lyrics arose after the litigation was initiated and thus could not reasonably point to malice upon initiation of the litigation. Second, Tucker failed as a matter of fact to link the advertisement and the lyrics to the defendants. 

    On the other hand, the court held that attorney Kenner may have committed malicious prosecution in his filing of an abuse of process claim against Tucker. The claim that Kenner filed focused on Tucker’s use of political influence. In light of the existing California precedent, which required abuse of a judicial process as distinct from political or administrative process, Kenner’s complaint was not tenable and thus could lead a fact finder to infer that “he did not believe the claim was valid when filed, or that the claim was instituted for an improper purpose.”  Id. at 1038. By contrast, the other claims against Kenner and the claims against other attorney defendants were dismissed because of a lack of evidence of “a purpose other than honoring their clients’ wishes.” Id

    In a partly concurring and partly dissenting opinion, Judge Noonan opined that evidence of malice arising post-lawsuit could be probative and that the advertisement and lyrics denigrating Tucker could reasonably lead a fact finder to infer malice. In addition, and while a lack of probable cause would not by itself establish malice, a showing that defendants knew of the lack of probable cause could help establish malice. 

    Significance of Opinion
    This opinion effectively holds attorneys to a higher standard than their clients in malicious prosecution cases on the ground that attorneys are or may be chargeable with knowledge of the law.