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Attorneys (& Plaintiffs) Need “Probable Cause” to Bring a Lawsuit


Malicious prosecution generally requires a plaintiff (and, sometimes, his or her lawyer) pursuing a lawsuit which was brought without probable cause. In simple terms, “probable cause” means a reasonable belief that the lawsuit is valid, based on the objective facts and circumstances of the relevant case.

Lawsuits brought without probable cause may be the subject of malicious prosecution claims by the defendant, but often these claims can be brought only after the defendant prevails in the initial action. (As with other legal issues, exceptions may exist; consult an attorney promptly if you are sued or if you believe you have a claim for malicious prosecution.)



When evaluating a malicious prosecution claim, courts evaluate whether the person who brought the allegedly malicious lawsuit had probable cause to file suit. The court will ask whether the person bringing the lawsuit (the plaintiff in the allegedly malicious action) had an objectively reasonable belief that his or her claim was valid. 

The test is objective, which means it evaluates the plaintiff’s actions using a “reasonable person” standard. If a reasonable person in the plaintiff’s position would have believed the case or legal action was legitimate and supported by law, and had a chance of winning, then the lawsuit was supported by probable cause. However, if a reasonable person would not have believed the case had a chance of winning, or that the claim was supported by law, then the case lacked probable cause and may have been a malicious prosecution.

Note that if the person bringing the lawsuit knew that the action was unsupported by law (and thus not a legitimate claim) then by definition the lawsuit lacked the requisite probable cause.




In proper circumstances, lawyers can be held liable for malicious prosecution, too. However, the client’s wrongdoing is not imputed to his or her lawyer, and the analysis of whether an attorney filed a lawsuit maliciously requires a separate test of the lawyer’s probable cause.

Like the plantiff-side evaluation, courts use an objective test to evaluate the lawyer’s probable cause to  bring a suit or claim. The test asks: would a reasonable lawyer have thought the plaintiff’s claim was justified by law and had a chance of succeeding?

If the plaintiff’s lawyer had sufficient evidence to support the claim being tenable, the lawyer is generally not liable for malicious prosecution.

Note that in a malicious prosecution claim the lawyer’s probable cause is evaluated separately from that of his or her client. Lawyers may properly bring a lawsuit or prosecute a claim even if they believe the claim will probably fail, as long as the lawyer has a reasonable belief that the claim is supported by law and/or has probable cause.

Also, an attorney is allowed to rely on representations made by his or her client, as long as the lawyer is not aware of errors (or falsehoods) in the client’s representations and has no reason to suspect that the client is not telling the truth. Lawyers cannot be held liable for malicious prosecution if it is later proven that the client lied or provided the lawyer with information that was untrue (as long as the lawyer had no actual or constructive knowledge of the client’s fabrications).



Disclaimer:  THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. Your rights and experiences may vary. Never use an article like this one to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options.  You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, consult an experienced malpractice lawyer immediately for an evaluation of your possible rights and claims.

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