J. Niley Dorit v. Jack Noe

In January 2018, Noe hired Dorit to evaluate the medical records of

Noe’s deceased mother for a potential medical malpractice suit against her

doctors. The parties signed a fee agreement in which Noe agreed to pay Dorit

a $10,000 non-refundable retainer fee. This sum was intended to cover

Dorit’s time spent evaluating the claim, as well as “the costs of additional

medical records and/or expert medical review if indicated.” The agreement

contained an arbitration clause, which stated, “Should there arise any

disagreement as to the amount of attorneys fees and/or costs, Client agrees to

enter into binding arbitration of such issue or dispute before the Bar

Association of San Francisco [(BASF)].”

On March 19, 2018, Dorit called Noe on the phone to present his

analysis of the records. Noe cut Dorit off soon after Dorit began his

presentation. Noe asked Dorit simply to provide his ultimate conclusion

about the potential malpractice claim. Dorit said he did not think a

malpractice claim was viable.

Noe later said he was dissatisfied with Dorit’s evaluation because Dorit

did not consult a medical expert and because Noe did not believe Dorit

seriously evaluated the case. Shortly after the call, Noe asked Dorit to return

some or all of the retainer fee. Dorit refused, so Noe filed a request for MFAA

arbitration with the BASF in July 2018.

Following a hearing, the arbitrator awarded Noe nothing and allocated

him the entire filing fee. Pursuant to the MFAA and the BASF’s arbitration

rules, the award was initially non-binding and either party could have

requested a trial de novo in superior court. Because neither party requested

3

a trial de novo, the award became binding by operation of law. (§ 6203, subd.

(b).) 2

A few months later, Dorit sued Noe in San Francisco Superior Court,

alleging a single claim of malicious prosecution. Noe responded by filing a

special motion to strike under Code of Civil Procedure section 425.16,

commonly known as the anti-SLAPP statute. (Wilson v. Cable News

Network, Inc. (2019) 7 Cal.5th 871, 880 (Wilson).) The trial court denied the

motion. Noe timely filed a notice of appeal.

DISCUSSION

I. Legal background and standard of review

A. Anti-SLAPP law

The anti-SLAPP statute is designed to prevent meritless lawsuits from

chilling individuals’ exercise of their rights of petition or free speech.

(Wilson, supra, 7 Cal.5th at pp. 883–884.) “To that end, the statute

authorizes a special motion to strike a claim ‘arising from any act of that

person in furtherance of the person’s right of petition or free speech under the

United States Constitution or the California Constitution in connection with

a public issue.’ ([Code Civ. Proc.,] § 425.16, subd. (b)(1).)” (Id. at p. 884.)

“Anti-SLAPP motions are evaluated through a two-step process. Initially, the

moving defendant bears the burden of establishing that the challenged

allegations or claims ‘aris[e] from’ protected activity in which the defendant

has engaged. [Citations.] If the defendant carries its burden, the plaintiff

must then demonstrate its claims have at least ‘minimal merit.’ ” (Park v.

Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061

2 After the events of this case, the Legislature amended sections 6200

and 6203 of the MFAA in minor respects, effective January 1, 2019. (Stats.

2018, ch. 659, §§ 138–139, pp. 80–83.) The changes are immaterial to this

case, so for simplicity we cite to the current versions of these statutes.

4

(Park).) “If the plaintiff fails to meet that burden, the court will strike the

claim. Subject to certain exceptions not relevant here, a defendant that

prevails on a special motion to strike is entitled to attorney fees and costs.

([Code Civ. Proc.,] § 425.16, subd. (c).)” (Wilson, supra, 7 Cal.5th at p. 884.)

We review the trial court’s ruling on an anti-SLAPP motion de novo.

(Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

B. Mandatory Fee Arbitration Act

The MFAA was enacted to eliminate a disparity in bargaining power

between attorneys and clients attempting to resolve disputes about attorney’s

fees. (Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th

557, 564–565 (Schatz).) The Legislature recognized that many clients were

infrequent consumers of legal services and would need to hire separate

lawyers to litigate fee agreement disputes. (Id. at p. 564.) Proponents of the

legislation at the time observed that the cost of a second lawyer was

prohibitive because it would often equal or exceed the value of the fees in

dispute. (Liska v. The Arns Law Firm (2004) 117 Cal.App.4th 275, 282

(Liska).) This in turn drove many clients to add malpractice claims to their

fee disputes, which increased lawyers’ malpractice insurance rates. (Ibid.)

In response to these concerns from both clients and lawyers, the

Legislature instructed the State Bar to establish and administer an effective,

inexpensive system of arbitration for fee disputes before local bar

associations. (Schatz, supra, 45 Cal.4th at pp. 564–565; Liska, supra,

117 Cal.App.4th at pp. 281–282.) In addition to avoiding the need for counsel

by making proceedings simple and informal, the MFAA also “strictly limits

the scope of the arbitration that the client may demand to the amount of the

reasonable fees (or costs) to which the attorney is entitled.” (Liska, supra,

117 Cal.App.4th at p. 282.) Only fee disputes are subject to MFAA

5

arbitration; arbitrators cannot award affirmative relief or damages against

attorneys for negligence or professional misconduct except for a refund of

unearned fees or costs. (Ibid.; §§ 6200, subds. (a) & (b)(2), 6203, subd. (a).)

Arbitrators also cannot award either party attorney’s fees or costs related to

the arbitration, regardless of any provisions in the parties’ contract, although

they can allocate the filing fee between the parties. (§ 6203, subd. (a).)

“ ‘The nature of the obligation to arbitrate under the MFAA differs

from that under standard arbitration in two important ways. First, the

obligation to arbitrate under the MFAA is based on a statutory directive and

not the parties’ agreement. Thus, a client may invoke the MFAA and proceed

to arbitration despite the absence of any prior agreement to do so. . . .

[¶] Second, section 6200, subdivision (c) provides: “[A]rbitration under this

article shall be voluntary for a client and shall be mandatory for an attorney

if commenced by a client.” In other words, whereas a client cannot be forced

under the MFAA to arbitrate a dispute concerning legal fees, at the client’s

election an unwilling attorney can be forced to do so.’ ” (Schatz, supra,

45 Cal.4th at p. 565.)

An award in MFAA arbitration is presumed to be non-binding, and

either party can request a trial de novo in superior court unless the party

willfully failed to appear at the arbitration. (§ 6204, subd. (a).) However, the

parties may agree after a dispute has arisen that the arbitrator’s award will

be binding. (Ibid.) Additionally, if neither party requests a trial de novo

within 30 days of the award, the arbitrator’s award becomes final and

binding. (§ 6203, subd. (b).) In any event, section 6204, subdivision (e)

states, “Except as provided in this section, the award and determinations of

the arbitrators shall not be admissible nor operate as collateral estoppel or

res judicata in any action or proceeding.”

6

II. Analysis

The trial court below ruled that Dorit’s claim arose from Noe’s

protected petitioning activity but that Dorit had demonstrated his claim had

more than minimal merit. Noe contends the trial court erred in the second

portion of its analysis because his MFAA arbitration claim cannot support a

malicious prosecution claim and Dorit failed to establish the other elements

of the tort. Dorit disagrees and argues in addition that if an MFAA

proceeding cannot support a malicious prosecution claim, then it also cannot

qualify as protected activity for the purposes of the first step of the antiSLAPP analysis. Accordingly, we will examine both steps of the anti-SLAPP

analysis.

A. Step One: Claims arising from protected activity

A suit is subject to an anti-SLAPP motion if it arises from “any act of

that person in furtherance of the person’s right of petition or free speech

under the United States Constitution or the California Constitution in

connection with a public issue.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

Such acts include “any written or oral statement or writing made before a

legislative, executive, or judicial body, or any other official proceeding

authorized by law” and “any written or oral statement or writing made in

connection with an issue under consideration or review by a legislative,

executive, or judicial body, or any other official proceeding authorized by

law.” (Id., subd. (e)(1) & (e)(2).) When interpreting this language to

effectuate the Legislature’s intent, we keep in mind that the Legislature has

instructed the courts to construe the anti-SLAPP statute “broadly.” (Id.,

subd. (a); Kibler v. Northern Inyo County Local Hospital Dist. (2006)

39 Cal.4th 192, 199 (Kibler).)

7

Noe contends the MFAA arbitration he initiated qualifies as an “official

proceeding authorized by law” because it was conducted pursuant to statute

as part of a regulatory scheme. We agree that MFAA proceedings qualify as

official proceedings because of their statutory basis and connection to State

Bar regulation of attorneys.

“When nongovernmental entities are involved, courts have limited

‘official proceeding’ anti-SLAPP protection to (1) quasi-judicial proceedings

that are part of a ‘comprehensive’ statutory licensing scheme and ‘subject to

judicial review by administrative mandate’ (Kibler[, supra,] 39 Cal.4th [at p.]

200 [hospital peer review]), and (2) proceedings ‘established by statute to

address a particular type of dispute.’ (Philipson [& Simon v. Gulsvig (2007)]

154 Cal.App.4th [347,] 358 [mandatory attorney fee arbitration]; see Bus. &

Prof. Code, § 6200 et seq.)” (Century 21 Chamberlain & Associates v.

Haberman (2009) 173 Cal.App.4th 1, 9.) While private contractual

arbitration is governed by statute, it is not an official proceeding because it is

not required by statute. (Ibid.)

Although MFAA arbitrations take place before local bar associations,

which are private organizations, MFAA arbitrations qualify as official

proceedings because they are both established by statute and part of the

State Bar’s comprehensive licensing scheme for attorneys. First, Philipson,

which Dorit fails to address, is on point here. There, a law firm sued its

client after, among other things, the client requested arbitration of a fee

dispute under the MFAA before the Orange County Bar Association.

(Philipson, supra, 154 Cal.App.4th at p. 353.) The court stated it had “little

trouble concluding that the initiation of a State Bar sponsored fee arbitration

proceeding” qualified as protected activity because the arbitration was “an

official proceeding established by statute to address a particular type of

8

dispute.” (Id. at p. 358.) Although Noe’s arbitration was before the BASF, it

was similarly governed by the MFAA so the same analysis applies.

Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531 also

supports this conclusion. That case held that where a statute required two

parties to agree to arbitration in their contract, the arbitration was an official

proceeding for anti-SLAPP purposes. (Id. at pp. 541–542.) Although the

MFAA did not require Noe and Dorit to provide for MFAA arbitration in their

fee agreement, it did obligate Dorit to comply with MFAA arbitration even in

the absence of that agreement. (§ 6200, subd. (c).) Because the obligation to

arbitrate here was at least partly statutory, as in Mallard v. Progressive

Choice Ins. Co., we agree with Philipson that Noe’s MFAA arbitration was an

official proceeding for anti-SLAPP purposes.

Second, Kibler held that proceedings that were part of a comprehensive

licensing scheme can be official proceedings for purposes of the anti-SLAPP

statute, and the circumstances here are analogous. Kibler involved a lawsuit

based on a hospital peer review proceeding, which is the process by which

licensed physicians on staff at a hospital evaluate each other’s performance

and consider outside physicians’ applications for admission to staff privileges.

(Kibler, supra, 39 Cal.4th at p. 199.) The Supreme Court held that such

proceedings were official proceedings because several statutes required

hospitals to offer peer review, report the results of peer review proceedings to

the board that licenses physicians, and consult that board’s records when

deciding whether to grant or renew a physician’s staff privileges. (Id. at pp.

199–200.) The court emphasized that these procedures were designed to help

protect the public against incompetent, impaired, or negligent physicians.

(Id. at p. 200.) Kibler also noted that peer review proceedings were

9

reviewable via administrative mandate, like the decisions of quasi-judicial

administrative agencies. (Ibid.)

Although hospital peer review and MFAA proceedings play different

roles in their respective licensure schemes, Kibler’s reasoning is applicable

here. The Legislature charged the State Bar with administering the MFAA

system and reviewing local bar associations’ rules for fee arbitrations.

(Schatz, supra, 45 Cal.4th at p. 565; § 6200, subds. (a) & (d); see also §§ 6203,

subd. (a) & 6204.5, subd. (b) [imposing procedural requirements on the State

Bar “or the local bar association delegated by the State Bar to conduct the

arbitration,” italics added].) Pursuant to this authority, the State Bar has

issued guidelines and standards for local bar associations’ MFAA arbitration

programs. (State Bar Guidelines and Minimum Standards for the Operation

of Mandatory Fee Arbitration Programs (Bar Guidelines).) Those guidelines

and the State Bar’s rules establish that if the State Bar has approved the

rules of procedure of a local bar association, that bar association’s fee

arbitration will constitute the fee arbitration required by the MFAA. (See

Rules of State Bar, rule 3.505(A); Bar Guidelines, ¶1.) The State Bar also

serves as a backstop arbitration provider, since it allows any party to remove

an arbitration proceeding from a local bar association to the State Bar itself,

if necessary, for a fair hearing. (See Rules of State Bar, rule 3.506; Bar

Guidelines, ¶22.) Finally, similar to how hospitals’ peer review proceedings

are reviewable by administrative mandate, MFAA arbitration rulings are

reviewable via a trial de novo in superior court. (§ 6204, subd. (a).)

The State Bar’s involvement in the MFAA program is more than a

matter of administrative convenience. The Legislature has instructed the

State Bar to enforce any binding MFAA award requiring the refund of fees to

a client by making the attorney ineligible to practice law until the attorney

10

pays the award. (§ 6203, subd. (d)(1) [State Bar “shall enforce the award,

judgment, or agreement by placing the attorney on involuntary inactive

status until the refund has been paid”].) The Bar can also require the

attorney to pay administrative penalties or costs to the Bar, and those

penalties or costs can be added to the attorney’s license fee for the next year.

(§ 6203, subd. (d)(3).) The State Bar has established rules implementing

these statutory provisions. (Rules of State Bar, rules 3.560–3.566.) The

State Bar’s role in administering the MFAA system, together with the

connections between MFAA arbitration awards and attorney licensure,

confirm that MFAA arbitrations are properly viewed as part of the State

Bar’s regulation of licensed attorneys under Kibler and therefore qualify as

official proceedings for the purposes of the first stage of anti-SLAPP analysis.

Because MFAA arbitration qualifies as an official proceeding under the

anti-SLAPP statute under both these lines of authority, we conclude Noe has

carried his burden of proving Dorit’s malicious prosecution cause of action

based on Noe’s MFAA arbitration claim arose from activity protected by the

anti-SLAPP statute.

B. Step Two: Probability of prevailing

Once a defendant bringing an anti-SLAPP motion establishes that a

claim arises from protected activity, the burden shifts to the plaintiff to

demonstrate a probability of prevailing on the claim, meaning the claim has

“at least ‘minimal merit.’ ” (Park, supra, 2 Cal.5th at p. 1061.) This second

step is “a ‘summary-judgment-like procedure.’ ” (Baral v. Schnitt (2016)

1 Cal.5th 376, 384.) “The court does not weigh evidence or resolve conflicting

factual claims. Its inquiry is limited to whether the plaintiff has stated a

legally sufficient claim and made a prima facie factual showing sufficient to

sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and

11

evaluates the defendant’s showing only to determine if it defeats the

plaintiff’s claim as a matter of law.” (Id. at pp. 384–385.)

Noe contends the trial court erred in finding that Dorit established a

probability of prevailing because MFAA arbitrations cannot serve as a prior

action for a malicious prosecution claim and Dorit failed to submit sufficient

evidence to prove Noe lacked probable cause or acted with malice. We agree

with Noe that a malicious prosecution claim cannot be based on an MFAA

claim, so we need not examine whether Dorit submitted sufficient evidence to

support the other elements of the tort.

“To establish a cause of action for malicious prosecution, a plaintiff

must demonstrate that the prior action (1) was initiated by or at the direction

of the defendant and legally terminated in the plaintiff’s favor, (2) was

brought without probable cause, and (3) was initiated with malice.” (Siebel v.

Mittlesteadt (2007) 41 Cal.4th 735, 740.) “The malicious commencement of a

civil proceeding is actionable because it harms the individual against whom

the claim is made, and also because it threatens the efficient administration

of justice. The individual is harmed because he is compelled to defend

against a fabricated claim which not only subjects him to the panoply of

psychological pressures most civil defendants suffer, but also to the

additional stress of attempting to resist a suit commenced out of spite or ill

will, often magnified by slanderous allegations in the pleadings. In

recognition of the wrong done the victim of such a tort, settled law permits

him to recover the cost of defending the prior action including reasonable

attorney’s fees [citations], compensation for injury to his reputation or

impairment of his social and business standing in the community [citations],

and for mental or emotional distress [citation]. [¶] The judicial process is

adversely affected by a maliciously prosecuted cause not only by the clogging

12

of already crowded dockets, but by the unscrupulous use of the courts by

individuals ‘. . . as instruments with which to maliciously injure their fellow

men.’ ” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50–51, fn.

omitted (Bertero).)

However, because of the potential for the tort to unduly chill citizens’

willingness to bring disputes to court, malicious prosecution “has

traditionally been regarded as a disfavored cause of action” and “the elements

of the tort have historically been carefully circumscribed so that litigants

with potentially valid claims will not be deterred from bringing their claims

to court by the prospect of a subsequent malicious prosecution claim.”

(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872.)

“Courts have decided that various proceedings may or may not give rise

to a future malicious prosecution action, largely depending on their nature.”

(Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 313 (Brennan).) As the trial

court recognized, no case has addressed whether MFAA arbitration can

support a malicious prosecution claim. Courts have held, however, that a

malicious prosecution claim cannot be based on private arbitration but can be

based on judicial arbitration. (Brennan, at p. 314; Stanley v. Superior Court

(1982) 130 Cal.App.3d 460 (Stanley).) As a result, the parties have vigorously

disputed whether MFAA arbitration is closer to judicial arbitration or private

arbitration.

MFAA proceedings do not fit cleanly into either category. For example,

Brennan’s conclusion that malicious prosecution cannot follow a private

arbitration rested in part on the voluntary nature of private arbitration and

the finality of private arbitration awards. (Brennan, supra, 25 Cal.4th at

p. 315.) Considerations such as voluntariness and finality do not easily apply

to MFAA arbitration. (See Schatz, supra, 45 Cal.4th at pp. 564–565

13

[distinguishing between MFAA arbitration and private arbitration on these

factors].) By default, MFAA arbitration is voluntary for clients but

mandatory for attorneys, while attorneys and clients may voluntarily agree

in their fee agreements to require MFAA arbitration. (§ 6200, subd. (c); see

Benjamin, Weill & Mazer v. Kors (2011) 195 Cal.App.4th 40, 54–55 [parties

can contractually agree to non-binding MFAA arbitration].) Likewise, MFAA

arbitration awards by default are not final, in that either party can request a

trial de novo. (§ 6204, subd. (a).) But parties can agree to make the award

binding after a dispute arises, and an award can become binding if no party

requests a trial de novo within the statutory time period, as happened here.

(§§ 6203, subd. (b), 6204, subd. (a).)

MFAA arbitration also does not squarely fit the mold of judicial

arbitration. In judicial arbitration, relatively small cases filed in court are

subject to mandatory diversion for non-binding arbitration before being

allowed to proceed to trial. (Mercury Ins. Group v. Superior Court (1998)

19 Cal.4th 332, 343; see also Code Civ. Proc., § 1141.11 [establishing criteria

for cases subject to judicial arbitration].) This serves as an aid to settlement

of litigation by giving the parties an arbitrator’s neutral view of all the issues

in a case, including damages and costs. (Stanley, supra, 130 Cal.App.3d at p.

471; Sagonowsky v. More (1998) 64 Cal.App.4th 122, 131.) If no party

requests a trial de novo after the arbitration, the decision of the arbitrator

becomes final and binding. (Stanley, at p. 465; see also Sagonowsky, at p.

131.) MFAA arbitration may also be viewed as an aid to settlement of

disputes by similarly providing a neutral evaluation of a party’s claim. But

where an MFAA arbitration occurs, it necessarily precedes any litigation; this

sequence, as we explain below, is a significant difference for purposes of

malicious prosecution. Additionally, while MFAA arbitration, like judicial

14

arbitration, can be binding if not challenged via a request for a trial de novo,

there is no statutory requirement mandating MFAA arbitration of all fee

disputes and there is no limit to the size of fee disputes that parties can take

to MFAA arbitration.

Fortunately, there is no need to shoehorn MFAA arbitration into either

of these two categories. As Brennan recognized, the ultimate questions are

whether the nature of MFAA arbitration suits the purpose of the malicious

prosecution tort and whether the tort suits the purpose of MFAA arbitration.

(See Brennan, supra, 25 Cal.4th at p. 313.) After examining those questions

directly, we conclude MFAA arbitration cannot serve as the predicate for a

malicious prosecution claim.

As noted above, the tort of malicious prosecution serves two purposes:

(1) preventing unscrupulous individuals from using the courts for nefarious

ends, thereby clogging crowded court dockets; and (2) compensating wronged

individuals. (Bertero, supra, 13 Cal.3d at pp. 50–51.) MFAA arbitrations are

not court proceedings, so allowing malicious prosecution based on an MFAA

arbitration would not serve the first purpose. A client waives the right to

MFAA arbitration by filing a suit, and a lawyer must give the client the right

to request MFAA arbitration before filing a claim in court. (§ 6201, subds.

(a), (d); Aguilar v. Lerner (2004) 32 Cal.4th 974, 987.) Thus, MFAA

arbitration necessarily precedes court litigation, and the Legislature created

it in the hope that it would serve as a substitute for court litigation. (Liska,

supra, 117 Cal.App.4th at pp. 281–282.) It is true that a party can request a

trial de novo in superior court and thereby trigger the concern of malicious

prosecution with abuse of the judicial process. But if this were to occur, the

defendant in the trial de novo could then file a malicious prosecution claim

15

based on the court proceedings.3 Allowing the defendant in MFAA

arbitration to file a malicious prosecution claim based only on the arbitration

contributes nothing towards the goal of deterring abuse of the court system.

Allowing malicious prosecution claims based on MFAA arbitrations

would also do little to advance the second purpose of the tort, compensating

wronged individuals. While the “right to redress for malicious conduct should

not depend upon the form of the proceeding by which the injury is inflicted”

(Hardy v. Vial (1957) 48 Cal.2d 577, 581), MFAA arbitrations do not impose

the same injury as most types of civil actions or proceedings. A malicious

prosecution claim allows a plaintiff to recover the costs and attorney’s fees

incurred in defending the prior, baseless suit, as well as harm to the

plaintiff’s reputation and mental or emotional distress. (Bertero, supra,

13 Cal.3d at pp. 50–51.) As Noe points out, Dorit represented himself in the

arbitration here, and the proceeding was confidential. (See Bar Association

of San Francisco, Rules of Procedure, Arbitration and Mediation of

Attorney/Client Fee Disputes, rule 9(H)(1), at p. 12 [arbitrations are closed to

the public and the arbitration case file and the award are confidential].) The

arbitrator also allocated the filing fee to Noe. As a result, Dorit’s costs from

the arbitration itself were low and the risk of harm to his reputation was

3 Cooper v. Pirelli Cable Corp. (1984) 160 Cal. App. 3d 294, 298–299,

held that a defendant who requests a trial de novo in superior court after a

small claims judgment cannot later sue for malicious prosecution, in part

because the de novo action remains founded on the small claims proceeding

and malicious prosecution cannot be based on a small claims action.

However, the court there noted that the de novo trial after a small claims

judgment at the time was itself a limited, summary proceeding. (Id. at

p. 299.) This remains true today. (See Code Civ. Proc., § 116.770, subd. (b).)

By contrast, there are no limitations on the trial de novo after an MFAA

arbitration. Cooper v. Pirelli Cable Corp. therefore does not present an

obstacle to malicious prosecution claims following trial de novo of MFAA

arbitrations.

16

minimal. (Cf. Trope v. Katz (1995) 11 Cal.4th 274 [self-represented attorneys

cannot collect attorney’s fees as prevailing parties].) These facts undercut the

need for his malicious prosecution claim.

The arbitration here seems typical in these respects. MFAA arbitration

was created specifically to avoid the need for clients to hire attorneys. (Liska,

supra, 117 Cal.App.4th at p. 284.) Because the proceeding is intended to be

informal and expeditious (id. at pp. 281, 287), attorneys will likely choose not

to hire separate counsel, as Dorit did here. Most bar associations’ MFAA

arbitrations are also confidential.4 The State Bar Guidelines for local bar

associations’ MFAA programs require the associations to preserve the

confidentiality of attorney-client privileged and work-product protected

documents disclosed during an arbitration. (Bar Guidelines, ¶6; § 6202.) Bar

associations may choose to maintain the confidentiality of the entire

proceeding to meet this requirement.

4 See, e.g., San Diego County Bar Association, Local Rules of Operation

for Fee Arbitrations, rule 26.4, p. 13, at



[arbitration hearings, case file, and award are confidential]; Los Angeles

County Bar Association Attorney-Client Mediation and Arbitration, Rules for

Conduct of Mandatory Arbitration of Fee Disputes Pursuant to Business and

Professions Code §§ 6200 et seq., Rule 44, p. 18, at

; but see Sacramento County

Bar Association, Mandatory Fee Arbitration Rules of Procedure, p. 11, at

[arbitration awards are public, though

hearings and case file are confidential]; San Mateo County Bar Association,

Rules of Procedure for Fee Arbitration, rules 26.1 & 26.3, pp. 10–11, at

The trial court’s order denying Noe’s anti-SLAPP motion is reversed.

The matter is remanded to the trial court to enter an order granting the

motion and to conduct for further proceedings consistent with this opinion.