By Frank Askin

  SLAPP suits have dogged the American judicial system for a quarter-century. A new slant may be added by the New Jersey Supreme Court in a case now pending decision.

SLAPP stands for Strategic Litigation Against Public Participation. It generally has been recognized as a frivolous lawsuit filed to silence public criticism without any real expectation of judicial success on the part of the plaintiff.

SLAPP suits come in many varieties. Typical cases are those brought on behalf of a developer who wants to silence public opposition to a zoning change or by the owner of a toxic dump upset by opponents demanding government closure. If the defendants, normally not in a position to hire an attorney to defend against the action, will agree to shut up, the suit will invariably be withdrawn. Occasionally, a non-profit organization such as the American Civil Liberties Union may agree to take a case pro bono, but there are far too many of these cases and far too few pro bono lawyers.

Twenty-six states have adopted legislation to curb SLAPP abuse, yet despite several attempts in New Jersey the legislature has failed to take action.

The suit now before the Supreme Court, Lobiondo v. Schwartz, has a tortured history extending more than a decade. In its current incarnation, the issue is whether the attorneys bringing such actions may be held liable for misusing the legal process.

The case involves an effort by a beach club in Sea Bright to obtain a zoning variance to construct a restaurant onsite. The defendants owned a house across the street and became vocal opponents of the project, communicating with local officials and their neighbors.

Lobiondo retained counsel who filed a lawsuit alleging defamation, intentional infliction of mental distress and tortious interference with business advantage — typical claims in SLAPP suits. The defendant retained counsel, who filed a counterclaim designated as a SLAPP-back cause of action.

The trial judge allowed all claims to proceed to trial, and the jury returned a million-dollar verdict for the plaintiff and gave small awards to the daughters of the main defendant on the counterclaim. There were cross-appeals.

The Appellate Division opinion, written by Presiding Judge Sylvia Pressler, found there was no defamation and the defendants' communications were protected speech. The court also threw out the counterclaim judgment on the ground it was in reality a suit for abuse of process or malicious prosecution, which did not ripen under the common law until the main claim was dismissed. The Appellate Division considered the argument of defense counsel and amicus that a SLAPP-back counterclaim should be recognized but said it was not appropriate for an intermediate appellate court to revise the common law and that it would leave such a determination to the Supreme Court.

So only the counterclaim went back for a new trial, in which the plaintiffs' attorneys were added as defendants on the ground they had brought a SLAPP suit intentionally and in bad faith" and “continued the litigation" after they knew or should have known there was no reasonable basis for doing so."

The trial court dismissed all the claims on motion for summary judgment, holding that the original plaintiff had acted on advice of counsel "which provided a complete defense to an action for malicious prosecution ..." and thus was immune from suit. The Appellate Division again remanded the claims against Lobiondo for further consideration of the facts concerning the "advice of counsel" defense.

As to the claim against the lawyers, the Appellate Division found it was an issue of first impression and turned to the Restatement of the Law Governing Lawyers for guidance. The court concluded that to be liable counsel not only had to be aware the client was litigating for an improper purpose, but in addition had to have an improper purpose of its own: “Requiring that the elements of the tort be proven against the attorney without permitting the imputation of the clients goals insures that representation will be available when the client’s claim has only marginal merit and may be pursued by the client for other than legitimate purposes.”

Curiously, the court again treated the claim as one for malicious abuse of process, and never mentioned the free-speech dimensions of the claim or referred to the original case as a SLAPP suit.

The New Jersey Supreme Court heard the appeal in November and decision is pending.

The decision should be of great interest to the bar as the court attempts to balance protection of free speech against the right of access to counsel and the courts.