RLG attorney Trey A. Rothell secured a victory recently in a Las Vegas legal malpractice case, overcoming a proposed affirmative defense where the defendants tried to blame a judge’s error—instead of their own actions —for a poor outcome.
The case stems from a defamation lawsuit filed in 2019. A real estate agent sued a home buyer who made a complaint to the state’s real estate board. Complaints to the state real estate board are privileged, and even if they are false, can not be the subject of a lawsuit. However, the complaint also was simply based on opinion, which rendered it doubly un-actionable.
RLG represented the defendant and filed an Anti-SLAPP Motion, but both the trial court and the Nevada Court of Appeals denied it. Undeterred, RLG appealed to the Supreme Court of Nevada, which unanimously ruled in the defendant’s favor. The trial court ultimately awarded the defendant over $160,000 in attorneys’ fees and costs.
The plaintiff declared bankruptcy. The bankruptcy trustee hired RLG to bring a legal malpractice claim against the plaintiff’s former attorneys. The suit alleges that the attorneys should have known the case was futile and should have advised their client to dismiss or settle it. As set forth in the complaint, the plaintiff’s case was doomed from the start because the defendant’s statements to the state agency were clearly protected under the judicial privilege doctrine, which immunizes statements made during judicial or quasi-judicial proceedings. Since a state licensing agency’s proceedings fell under this doctrine, the argument is that the plaintiff’s attorneys should never have advised their client to proceed. Therefore, this led the plaintiff into an impossible case, which led to his bankruptcy.
As the malpractice case unfolded, the lawyers’ attorneys mounted a novel defense. They sought to blame the judges who erroneously denied the Anti-SLAPP motion before it reached the Nevada Supreme Court. Their argument was, essentially, that an attorney should be excused from providing competent advice to a client as long as a judge erroneously agreed with their flawed position.
The attorneys filed a motion to amend their answer to include this defense, calling it the “judicial error” defense. Nevada’s standard for amending an answer is quite liberal—amendments are generally allowed unless they’re futile. RLG opposed the motion, and RLG attorney Trey A. Rothell argued before the Eighth Judicial District Court.
The court agreed with RLG and denied the motion to amend, finding the proposed affirmative defense would be futile. The court held that an attorney’s duty to provide competent advice isn’t negated just because a judge happened to erroneously agree with them. Furthermore, since the error was ultimately corrected on appeal by the Supreme Court of Nevada, the “judicial error” defense was inapplicable. Ordinarily, the judicial error defense applies when there is an erroneous ruling against the client that could have been corrected had an appeal been taken; here, the erroneous ruling was for the client and there was no appeal which the client failed to take.
The case is Schwartzer v. Trippiedi, et al., Case No. A-23-879142-C (8th Jud. Dist. Ct. NV).
