KENNETH C. FELDMAN

Kenneth C. Feldman is a partner and the former longtime chair of the legal malpractice defense department at Lewis Brisbois Bisgaard & Smith LLP. He joined the firm in 1999. Currently on sabbatical, he is the co-author with colleague David D. Samani of the California Legal Malpractice & Malicious Prosecution Liability Handbook.

After the sexual assault investigation of Los Angeles Dodgers pitcher Trevor Bauer, Bauer sued for defamation both the alleged victim, Lindsey C. Hill, and her lawyer, Niranjan Fred Thiagarajah, over comments they made about the case. Bauer v. Hill et al., 8:22-cv-00868 (C.D. Cal., filed April 25, 2022).

Representing Thiagarajah, Feldman's task was to persuade the court to strike Bauer's claims against Thiagarajah based on statements the lawyer made in a Washington Post interview. Using California's anti-SLAPP statute, Feldman persuaded the court that the statements -- such as that Bauer "just brutalized" Hill -- were protected First Amendment activity that Bauer could not show to be false.

Senior U.S. District Judge James V. Selna of Santa Ana dismissed Bauer's claims against Thiagarajah and held that Thiagarajah was entitled to recover reasonable fees and costs. That issue later settled on confidential terms.

Meanwhile, last year, in a malicious prosecution case filed against a lawyer, Feldman persuaded the court to grant an anti-SLAPP motion. That outcome echoed a case from 2002, when Feldman established for the first time in an appellate ruling that the plaintiff did not meet his burden of prevailing in a malicious prosecution case on the merits under the anti-SLAPP statute. White v. Lieberman, 103 Cal.App.4th 210 (2d DCA, Oct. 29, 2002).

"People may think twice about suing opposing counsel for malicious prosecution due to the mandatory attorney fee component of the anti-SLAPP statute, where fees are awarded to prevailing defendants," Feldman said.

He recently handled a defamation case filed in federal court against his lawyer client shortly before the underlying case was set for trial in state court. Feldman was able to dispose of the defamation matter on an anti-SLAPP motion followed by a motion to dismiss.

"I think the other side was trying to distract from the underlying case by attempting to drive a wedge between client and counsel, as we've seen other litigants do in the past," Feldman said.

In another matter where a previous Feldman win came in handy, the issue was whether a union lawyer could be sued for malpractice over a union governance matter. Feldman won't name his client, but he pointed out that he was able to win on demurrer in part by citing one of the first appeals he ever handled more than 30 years ago, establishing that legal counsel functioning as union agents in the collective bargaining process are immune from liability. Aragon v Pappy, Kaplon, Vogel & Phillips, 214 Cal.App.3 d 451 (1989).

"It's nice to create favorable law and then for me, my firm and other members of the legal malpractice defense bar to use those precedents," Feldman said. "I like participating in the advancement of the law."

- John Roemer