CLAIM AGAINST MALICIOUS PROSECUTION AND LIABILITY OF
ATTORNEY/LAWYER
By:
SYEDA
TOOBA AKHTAR*
Abstract:
The element of false and
frivolous litigation makes the courts heavily burdened which results in causing
delay in disposal of real litigation and “ Justice delayed is justice denied ”.
False and frivolous litigation can be vanished, if law of tort is properly
exercised against it. If false and frivolous litigation is vanished or at least
it is minimized, it would certainly save precious time of courts of law which
would resultantly expedite the disposal of real litigation. Unfortunately, law
of tort against malicious prosecution is not commonly exercised in
Introduction:
Malicious prosecution or
malicious civil action means the filing of an unsuccessful malicious
criminal/civil case against someone without reasonable and probable cause. The
malicious prosecution or action must be ended, and the plaintiff, must show it
was groundless, either by his acquittal or by obtaining a final judgment in his
favor in a civil action. The remedy for a malicious prosecution is an action on
the case to recover damages for the injury sustained. For malicious
prosecution, action lies against the prosecutor and even against the informer.
But grand jurors are not liable to an action for a malicious prosecution for
information given by them to their fellow jurors, on which a prosecution is
founded. Such action lies against a plaintiff in a civil action who maliciously
sues other [1]
The liability of a lawyer:
Traditionally,
only the unsuccessful plaintiff or complainant in a previous case who
instituted the suit or complaint “ maliciously ” and without “ reasonable and probable cause ”
was liable in a subsequent suit for damages on the basis of malicious
prosecution.
But, in wake of certain
rulings of the superior courts including lower Appellate Court and California
Supreme Court, a claim for malicious prosecution/malicious civil action can be
brought even against the lawyer for plaintiff/complainant.
Scores of
The unanimous
court now says that a lawyer who discovers evidence that undermines a claim in
the suit has an affirmative obligation to persuade the client to drop the claim
or withdraw from the case, or else both (lawyer and his client) will face the
civil liability for malicious prosecution. [3]
The increasing
concern over the congestion of the Judicial System has produced little
discussion focusing on the critical role that the lawyers have played in the
tremendous growth of litigation. Lawyers contribute to the overburden by
various means including by instituting merit less actions.
The theory
behind such kind of shocking rulings is that the “fundamental interest’
protected by malicious prosecution tort is “freedom from unjustifiable and
unreasonable litigation ” and it is the filing of lawsuit which sets the wheels
of justice in motion. To curb such kind of false and frivolous litigations and
to protect the “fundamental interest” provided by the tort of malicious
prosecutions the Supreme Court turns the law of malicious prosecution on
lawyer’s head. [4]
Ingredients:
By the consensus
of opinions of Courts, it is well-settled that to establish a claim for
malicious prosecution (malicious abuse of process) against a lawyer, a plaintiff
must prove that the lawyer;
(1) knew the client’s claim was baseless and
either;
(a) knew the
client was pursuing litigation for an improper purpose or ;
(b) litigated
for the lawyer’s own improper purpose. [5]
In other words,
absent a lawyer having his or her own “improper purpose” in pursuing a claim, a
lawyer cannot be held liable for the initiation, continuation, or procurement
of litigation. The existence of probable cause and of an improper purpose is
assessed separately for a lawyer and for the client on whose behalf the civil
proceedings was brought. [6]
Thus the lawyer
may have a defense even to such a claim where his/her client does not.
So far as the
element of “probable cause” is concerned it exits if the lawyer has a
reasonable belief that the facts on which the claim is based can be established to the satisfaction of the trier of fact (jury) and has a reasonable belief that there
is a sound chance that under those facts the claim may be held valid. But
“probable cause” in this context is determined solely based on the facts known
to the lawyer at the time the complaint/suit was filed. When there is no
dispute as to what facts were so known, the existence of probable cause is an
issue of law to be decided by the Court, not a jury issue. [7]
Nonetheless,
even if a lawyer “has no probable cause and is convinced that his client's
claim is unfounded, he is still not liable [for wrongful use of civil
proceedings] if he acts primarily for the purpose of aiding his client in
obtaining a proper adjudication of his claim. The fact that the lawyer is earning a legal
fee does not constitute an improper purpose for the lawyer’s
involvement. [8]
Modified
to the “improper purpose” the standard is "whether any reasonable attorney would have
thought the claim tenable" [9] a standard that is satisfied if the issues
presented in the underlying action were arguably correct, even if it was
extremely unlikely the client would win. For this purpose, the nature and extend
of lawyer’s subjective research and investigation of facts is irrelevant. [10]
If the court determines that the prior action was not objectively tenable and
thus concludes that the action was brought without probable cause , evidence of
the extent of a lawyer's legal research may be relevant to the further question
of whether the prior action was instituted with malice, but if the court finds
that the prior action was in fact tenable, probable cause is established than
the claim of malicious prosecution would fail, without regard to the adequacy
or inadequacy of the lawyer's legal research efforts.[11]
As stated above, if the trial court concludes that the prior action was
not objectively tenable, evidence that the defendant lawyer did not
subjectively believe that the action was tenable would clearly be relevant to
the question of malice. In as much as lawyer who does not have good faith
belief in the tenability of an action will normally assume that a court is
likely to come to the same conclusion, the liability of a lawyer in a malicious
prosecution tort will continue to deter lawyers from filing actions which they
do not believe are legally tenable. [12]
The
techniques and strategies which may be useful in a claim for malicious
prosecution against a lawyer:
The Former defendant who prevailed in an unjustified lawsuit is now
plaintiff in a suit for damages on the basis of malicious prosecution, and the
target is the former plaintiff’s lawyer.
The theme will generally be that the lawyer-defendant has violated a
sacred public trust which bestows the power to file and prosecute legal
actions. Counsel for plaintiff will want to show that that defendant is a
threat to the judicial system and deserving the indignation and contempt of
decent society. The
defense will usually attempt to show that the lawyer-defendant was properly
engaged in the highest calling of the profession, i.e., to represent his client
zealously. Defense counsel will argue that his client acted
"reasonably" under the circumstances.
Motions in limine:
A motion in limine will prevent the defense
from introducing " new " evidence which may not have been presented
at the former trial. Plaintiff in an action for malicious prosecution must
prove that the prior judicial proceeding terminated in his favor, and it is
essential that the defendant not be given the opportunity to re-try that case.
That issue must remain closed. Therefore, it is necessary to prevent the
defense from questioning the findings which form the foundation of the
malicious prosecution case. The trial judge must be persuaded that principles
similar to res judicata
prevent the re-litigation of the prior case [13]
To Jury:
Ironically, jurors whom plaintiffs usually avoid (e.g., insurance
adjusters, law enforcement types) may be the most favorable to plaintiff in an
action for malicious prosecution. Law enforcement types will be hard on the
lawyer who "broke the rules." Insurance adjusters have an innate bias
against lawyers who present unfounded or "nuisance" cases for
settlement. Persons who are generally critical of the litigation process will
be inclined to punish an errant lawyer. The plaintiff's lawyer should ask each
juror such questions as;
"Do you agree that a lawyer should be held accountable for harm
that he causes by his wrongdoing?"
"Do you believe that a lawyer may do whatever he wants in
representing a client, regardless of whether it is right or wrong, reasonable
or unreasonable?"
"Are you willing to judge
the conduct of this lawyer and decide whether his conduct went beyond what the
law allows him to do?" [14]
Presenting Plaintiff’s case:
Since the re-litigation of the former lawsuit is prohibited, the
favorable termination of that case is the starting point of the malicious
prosecution case. [15]
Therefore, it is suggested that, before plaintiff's first witness is
called, plaintiff should offer, as Exhibit "1", the judgment in the
underlying action. The witnesses for plaintiff should establish plaintiff's
obvious innocence of the defendant's accusations to fuel the jury's outrage.
The plaintiff's attorney needs to convey the clear implication the
lawyer-defendant was acting with a knowing and conscious disregard for the
facts and the rights of the plaintiff. The greater the amount of evidence
favorable to the plaintiff which was available to the lawyer-defendant (whether
he discovered it or not), then the greater the inference that the proceedings
were initiated for the improper purpose of forcing a settlement which had no
relation to the merits of the claim [16]
Expert Witnesses:
In a malicious prosecution case against a lawyer, the test for probable
cause is whether the case was tenable, meaning "objectively
reasonable." In other words, if no reasonable (prudent) lawyer would have
believed that there was a legitimate basis for prosecuting the lawsuit, there
was no probable cause. Although "probable cause" is a pure question
of law, whether it existed is a pure question of fact. That question of fact,
however, is to be determined solely by the court. It is thoroughly established
that experts may not give opinions on matters which are essentially within the
province of the court to decide. [17]
Accordingly, no experts may testify on the probable cause issue. No court has ruled, however, that experts may not testify on the issue of
malice. In fact, the Supreme Court stated that the extent of a defendant
lawyer's investigation and research may be relevant to the further question of
whether or not the lawyer acted with malice [18]
Thus, a lawyer's failure to conduct an investigation of the facts and
law reasonable under the circumstances in a case which turns out to lack
probable cause may be enough in appropriate circumstances to establish malice.
Therefore, counsel for plaintiff should offer expert testimony by a lawyer who
can explain what research and investigation "reasonable" lawyers
would have done, and why the given conduct was improper, unethical or
unreasonable. The expert should also be used to educate the jury on the subject
of such matters as settlement, public policy and improper motives for
settlement. From the defense prospective, an expert witness will be necessary
to counter the plaintiff's arguments. [19]
Damages:
The easiest item of compensatory damages to prove is the amount of
lawyer's fees which the plaintiff paid in successfully defending the underlying
claim. It may be effective to ask the plaintiff on direct examination whether
the payment of the fees resulted in some form of deprivation or humiliation.
For example, "I had to borrow the money." [20]
Plaintiff is entitled to be compensated for any detriment or harm to
his reputation, including any impairment of his social and business standing.
Newspaper articles and pictures are persuasive proof of the widespread impact
of the defamatory allegations.[21]
Loss of reputation, however, is difficult to prove since friends and
acquaintances of the plaintiff will be reluctant to testify that they
disassociated themselves as a result of the accusations in the underlying
lawsuit. In fact, the defense could very well use these friends and associates
against the plaintiff by having them testify that they never believed the
allegations, and their relationship with plaintiff did not change as a result. Emotional
and mental suffering will usually comprise a large element of damages.
The Supreme Court has held that plaintiff may recover damages for any
mental suffering or emotional distress suffered by him. [22]
The word "any" is the key because it permits recovery based
upon the plaintiff's particular disposition.
Summation:
For summation, it is necessary to call in the "commitments"
which were pledged earlier by the jurors. Among these "commitments"
will be the obligation to judge right from wrong, moral from immoral and
justice from injustice. As in other cases, a central theme should be "the
jury as the voice of the community". By casting the jurors in their role
as "guardians of justice", the power to regulate the litigation
process is placed in their hands. The jury can be told: "If you want to send
a message to the lawyers in our society that this wrongful use of our system of
justice will not be tolerated, tell them with your verdict. You have the power
to set the standard of conduct for lawyers in our society." This is the
springboard into the argument of the deterrent value of punitive and exemplary
damages. [23]
So these are the
certain techniques and strategies which may be useful in the actual trial of
the case. Further the common perception that the litigation explosion is caused by false and frivolous
litigation may work in plaintiff's favor. A verdict for plaintiff is more
likely if the jurors believe that their verdict will help put an end to
improper use of the courts.
Advice for the plaintiffs and their lawyers in the
wake of such liability:
(a) Do legal research on all claims.
(b) Pursue fraud claims with extreme
caution.
(c)
When arguing the issue of objective tenability to judge, emphasize that
even a reasonable (prudent) lawyer may sometimes disagree and the standard is - "Only
those actions that any reasonable attorney would agree are totally and
completely without merit may form the basis for a malicious prosecution
suit." Thus, the test is essentially whether "all" reasonable
attorneys would agree.[24]
(d) If sued for malicious prosecution,
immediately make an anti-SLAAP motion. It is relatively new weapon to stave off
a frivolous malicious prosecution claim available under California Code of
Civil Procedure. Challenge to an action for malicious prosecution under
California Code of Civil Procedure may be filed within 60 days after the
complaint is served during which time all discovery is stayed unless "good cause"
is shown. In other words the plaintiff will have to state prima facie case(and
malice is often hard to often hard to state with any specific evidence or even
a reasonable inference) .And unless the plaintiff establishes "reasonable
probability" of success on the merits, the case is dismissed with an award
of lawyer fee to the prevailing defendant. [25]
(e)
Write your
The net effect:
These rulings
(which make a lawyer liable for an action of malicious prosecution) have not
been welcomed by the lawyers.
It just gives
license to defense counsel to threaten an action for malicious prosecution when
plaintiff’s lawyer will not simply buy the bullshit served on a silver plate
(as is the case with many a defense). [26]
To curb abuses
after the initiation of lawsuit, courts have other remedies-sanctions than to
adopt this. Such decisions will, without doubt, drive more and more lawyers
away from plaintiff representation….to the detriment of all those little people
who need a little justice sometimes in their lives. As a practical matter the
Supreme Court’s expansion of malicious prosecution liability will serve as a
terribly lopsided burden imposed on lawyers. The new rules effectively force
lawyer to drop the claim, or cases altogether. If the plaintiff manages to
obtain victory and justice in court, defense lawyer cannot be sued for
maliciously filing an appeal. Is this Homer Simpson justice? [27]
The New Jersey
Superior Court Appellate Division, however, placed welcome and strict
limitations on the right of a plaintiff to bring malicious
prosecution/malicious abuse of process action against lawyers. [28].
The decision in Lobiondo v. Schwartz,
References:
1.
Quoting
from the Supreme Court of Canda decision in Nelles V. Ontario, 1989 2 SCR 170.
2.
Dirmity Z. Tsimberg, Will Lawyers Drop Plaintiff
Cases?
3.
Zamos
V. Stroud (
4.
David
W. Pollack, Theme behind lawyer’s liability.
5.
Lobiondo V. Schwartz, 2007 WL 2188600 ( N.J App.2007)
6.
Ibid.
7.
Dirmity Z. Tsimberg, Will Lawyers Drop Plaintiff
Cases?
8.
Lobiondo V. Schwartz, 2007 WL 2188600 ( N.J App.2007)
9.
Sheldon Appel Co. v.
Albert & Oliker, 1989, 47 Cal.3d at p.886
10. Ibid at p.885
11. Ibid
at p.868
12. Ibid at p.881-882
13.
Albertson v. Raboff (1956)
46 Cal.2d at p.39
14. Jennifer Brown Shaw and Carolyn Burnett, Cases Against Lawyers.1999 Vol-3, p
347
15.
Albertson v. Raboff (1956) 46 Cal.2d at p.375
16. Jennifer Brown Shaw and Carolyn Burnett, Cases Against Lawyers.1999 Vol-3, p 348
17.
Sheldon Appel Co. v. Albert & Oliker
, 1989, 47 Cal.3d at p. 863, 884
18. Ibid at p.883
19. Jennifer Brown Shaw and Carolyn Burnett, Cases Against Lawyers.1999 Vol-3, p 348
20. David W. Pollack, Theme behind lawyer’s
liability.
21.
Blair v.
Williams (1952) 109 Cal.App.2d at p.516
22.
Bertero v. Natn'l General Corp.
(1974) 13 Cal.3d at p.558
23. David W. Pollack, Theme behind lawyer’s
liability.
24. Jennifer Brown Shaw and Carolyn Burnett, Cases Against Lawyers.1999 Vol-3, p 352
25. Ibid at p.357
26. Ibid
27. Ibid
28. Lobiondo V. Schwartz, 2007 WL 2188600 ( N.J App.2007)
Bibliography:
Cases:
1.
Nelles V. Ontario, 1989 2 SCR 170
2.
Lobiondo V. Schwartz, 2007 WL 2188600 ( N.J App.2007)
3.
Sheldon Appel Co. v.
Albert & Oliker, 1989, 47 Cal.3d
4.
Blair v. Williams (1952) 109 Cal.App.2d
5.
Bertero v. Natn'l
General Corp. (1974) 13 Cal.3d
6.
Zamos
V. Stroud (
7.
Albertson v. Raboff (1956)
46 Cal.2d
Books:
1.
Jennifer Brown Shaw and Carolyn
Burnett, Cases Against
Lawyers.1999 Vol-3
Articles & Journals:
1.
Dirmity Z. Tsimberg, Will Lawyers Drop Plaintiff
Cases?
David W. Pollack, Theme
behind lawyer’s liability.