An appellate court in California has ruled a lawyer's advice to her client-paramour was protected speech, in a suit that alleged the lawyer used her intimacy with her client to induce him to renege on paying millions of dollars to his former love interest.
"The facts of this case would not seem out of place as the plot of a daytime soap opera," Judge Brian Cogan observed.
The April 21 decision was penned by Cogan, with agreement from Judges Johnnie Rawlinson and Mark Bennett, of the U.S. Court of Appeals for the Ninth Circuit. The decision favored Christine E. Drage in an action brought against her by Lezlie J. Gunn in U.S. District Court for Nevada. Court documents indicate Gunn lives in Nevada.
Drage is a lawyer who owns Weil & Drage, a firm with offices in California, Nevada, Arizona and Colorado.
Gunn had been romantically and professionally involved with Dr. Hans P. Wild, a Swiss businessman, for 30 years, according to court papers. They broke up in 2015-16. As part of their separation, they agreed Wild would make a tax-free gift of $60 million to Gunn, pay Gunn another $35 million over 10 years and transfer $20 million to an educational trust fund. In addition, Wild would pay $3 million to Gunn for three properties and cover certain of her expenses.
Gunn sued Drage in 2019, claiming that after she and Wild went their separate ways, Drage started representing Wild, with Drage and Wild becoming a romantic pair. Gunn said she received the $60 million and payment for the properties, but alleged Drage used her personal relationship with Wild to persuade him to renege on the rest of the agreement.
Gunn sought $150 million in damages, plus unspecified punitive damages.
Drage had the suit dismissed on grounds she was within her rights to counsel Wild, as a lawyer advising a prospective client and later, after she was hired by Wild, as a lawyer advising a bona fide client. Drage cited California’s Strategic Lawsuit Against Public Participation (SLAPP) law which shields lawyers sued for their words and acts related to litigation, among other persons.
On appeal, Gunn claimed SLAPP did not protect Drage's words to Wild before she officially became his counsel.
Judge Cogan did not agree.
"A court need not resolve whether Wild actually retained Drage as his lawyer, or if she merely advised him as a prospective client. Both are protected activities when undertaken in connection with litigation seriously contemplated in good faith at the time these communications took place, as was the case here. Drage's actions . . . easily qualify," Cogan said.
Cogan noted, quoting a 2012 appellate ruling, that '"numerous cases have held that the SLAPP statute protects lawyers sued for litigation-related speech and activity.'"
Cogan further pointed out, quoting a 2008 appellate ruling: "An attorney-client relationship is not necessarily required: 'a cause of action arising from a lawyer’s conduct, when the conduct includes advice to a prospective client on pending litigation,' is also protectable."
Gunn and Wild have engaged in other litigation since their breakup, including one suit Wild lodged in Switzterland, which alleged his agreement with Gunn was void because Gunn allegedly made misrepresentations to him.
Drage has been represented by Todd Lander, of Rosen Saba, of El Segundo; Robert Heller and John Godsil, of Freeman, Freeman & Smiley, of Los Angeles; Jason Wiley and Ryan Petersen, of Wiley Petersen Law Offices, of Las Vegas; and Mitchell Langberg, of Brownstein, Hyatt, Farber & Schreck, of Los Angeles.
Gunn has been defended by Thomas Vogele and Timothy Kowal, of Thomas Vogele & Associates, of Costa Mesa.