7:3 Abuse of Process

• Jurisdiction: Arizona

§ 7:3 Abuse of Process

The law of abuse of process as it applies to Arizona attorneys was muddied in the last couple of decades by a problematic decision out of Division One of the Arizona Court of Appeals, but has been clarified by a subsequent decision out of Division Two.

Abuse of process requires: (1) an ulterior purpose; (2) and a willful act; (3) in the use of the judicial process; (4) that is not proper in the regular conduct of proceedings.^[296]

In Bird v. Rothman,^[297] a woman was injured at a race track and after suing the race track, later sued the architect who had designed the track. The architect later sued the attorneys who brought the claim for abuse of process and while the Arizona Court of Appeals upheld summary judgment in favor of the attorneys, the court of appeals treated it as axiomatic that an Arizona attorney could be sued on abuse of process grounds.^[298]

This axiom was called into question in Linder v. Brown & Herrick.^[299] After a very long and unnecessarily contentious litigation, the plaintiff sued opposing counsel for fraud and intentional infliction of emotional distress. Division One of the Arizona Court of Appeals selectively quoted from a California case with an unusual fact pattern and going far beyond the facts before it in the record, held generally that claims against opposing counsel for intentional acts were entirely limited to the theory of malicious prosecution.^[300]

The court went even further and stated that outside of malicious prosecution, a plaintiff suing opposing counsel for a tort had recourse only to either a disciplinary...