Louisiana, like most States, has a procedure in place in Louisiana’s Code of Civil Procedure Article 971 (the “Special Motion to Strike”) affording the defendant an opportunity to have the case dismissed based upon a listed Constitutional or legislative activity. Until somewhat recently, there were no reported decisions as to whether an attorney providing representation to a client could use the provisions of this Article in the legal malpractice arena.  This writer had the first published state appellate decision, Thinkstream v Rubin, 971 So. 2d 1092 (La. App. 1^st Cir. 2007), and first (unpublished) federal Fifth Circuit decision, Brown v Wimberly, 477 Fed. Appx. 214 (U.S. 5^th Cir. 2012), in which the courts dismissed the malpractice suit on the basis of Article 971.  Other state appellate decisions have issued similar rulings.

Recently, Louisiana’s First Circuit Court of Appeals issued two rulings in which it affirmed dismissals of cases against attorneys based upon a special motion to strike. Samuel v Remy, 2015 CA 0464 and Samuel v Remy, 2015 CA 0465  (La. App. 1^st Cir. August 31, 2016).  In Samuel, plaintiff—an attorney representing a client in a domestic matter–filed a motion to recuse the trial judge in the domestic matter and subpoenaed numerous witnesses for the hearing.  During the hearing, one of witnesses’ counsel orally moved for sanctions to be imposed on the plaintiff.  Following the hearing this witness’ counsel and the attorney for one of the parties filed motions, which plaintiff believed included statements that were defamatory.  Thereafter plaintiff filed a defamation suit against the attorneys.  Citing their clients’ Constitutional rights to access to the courts, the attorneys filed a special motions to strike seeking dismissal of the defamation suit.  The First Circuit affirmed the trial court’s granting of the anti-SLAPP motions.

The evolution of the anti-SLAPP motion by attorneys in Louisiana tracks that of other states—allowing attorneys to avail themselves of the provision of this article even though the Constitutional right is the client’s. The special motion to strike is an effective tool in seeking an early dismissal of litigation.  Under the provisions of Louisiana law, the filing of this motion precludes discovery from occurring until the Court rules on the motion –thereby oftentimes avoiding privilege issues.  Additionally, Article 971 provides for an award of attorney fees and costs to the prevailing party.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.