3d DCA Watch -- Litigation Privilege vs. Malicious Prosecution -- There Can Be Only One!

Hi kids, the heat is on and the bunker denizens are leading the way with their official 3d DCA summer pickle ball league -- judicial gentlemen (and ladies): grab your whiffle!

Are these judges cutting-edge hipsters or what?

Onward:

Wolfe v. Foreman:

Holy moly -- big $hot Marty Steinberg in our own little DCA, escorted into the lion's bunker by veteran bunkerite Lauri Waldman Ross, in an epic battle between the scope of the litigation privilege vs. a tort for malicious prosecution.

Guess who wins:

Because the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be “free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct,” we are obligated to conclude that the act complained of here—the filing of the complaint—is protected by the litigation privilege. Thus, the trial court properly granted a judgment on the pleadings for Wolfe’s cause of action against the Miami Lawyers for malicious prosecution.

And here's Chief Judge Shepherd with a blistering special concurrence:

The only remarkable thing about this case is its existence. As the managing attorney of the Miami office of The Florida Bar explained to Mr. Wolfe (himself a licensed Florida attorney), when he refused to accept staff counsel’s initial rejection of his Bar complaint against the Kenny Nachwalter lawyers who brought the federal action, “the Florida rules governing attorney conduct . . . preclude an attorney from bringing a frivolous action. Once the attorneys learned of the true history of the litigation, they withdrew.” Rather than approbation for doing the right thing, the law firm and two of its attorneys sadly have been rewarded with a summons and complaint.

Appellate fees and costs awarded to Kenny Nachwalter btw.

See you all on the pickle ball courts!