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Malicious Prosecution Case Against Lawyers Dismissed

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NOVEMBER 24, 2003 VOLUME 11, NUMBER 21

Sherry Zachary was sure that her brother Raymond had taken advantage of their mother. She was so sure that she hired California lawyers John L. Guth and Jeffrey T. Stromberg to file a lawsuit against Raymond. Eventually Raymond sued the lawyers—though not successfully.

The first lawsuit filed by Sherry’s attorneys was over the transfer of the family farm to Raymond shortly before the death of their mother, Miriam Zachary. Sherry (through her attorneys) alleged that Raymond had made misrepresentations to Miriam, had unduly influenced her, and had taken advantage of Miriam’s declining mental health.

Raymond demonstrated to the court that Miriam knew what she was doing and wanted him to have the farm, and the first lawsuit was dismissed a year after it was filed. Shortly thereafter, Sherry (and her attorneys) filed a second action against Raymond, alleging that he had borrowed $25,000 from Miriam and had not repaid it to her estate. Sherry sought half of the loan amount from her brother.

Nearly two years later, Sherry and the lawyers dismissed the second lawsuit without even taking it to trial. Then Raymond filed his own lawsuit, against Sherry and her lawyers.

Raymond alleged that Sherry’s lawyers should have known that her claims were groundless. If they did not actually know there was no basis, argued Raymond, they could have done a little checking and determined that the lawsuits should not have been filed in the first place. Failure to check up on the merits of the case before filing, Raymond insisted, amounted to malicious prosecution.

Lawyers Guth and Stromberg asked the court to dismiss the lawsuit, arguing that there was no evidence they actually knew the lawsuits were without merit. The trial court dismissed the complaints against the lawyers, and the California Court of Appeals agreed.

The appellate court ruled that it would be unreasonable to require lawyers to do their own full investigation before filing lawsuits on behalf of their clients. The standard for judging a lawyer’s behavior in these circumstances, ruled the court, is whether a reasonable lawyer would have thought Sherry’s claims were tenable. Zachary v. Gluth, November 7, 2003.

Even if a lawyer is not required to fully investigate a client’s claims before filing a lawsuit, no lawyer is permitted to file any pleading for an “improper purpose.” Arizona rules allow sanctions against a lawyer who files a complaint or motion as harassment, to increase costs or delay legal proceedings.

Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.