Author Archives: Robert Ross
Elements of a Malicious Prosecution Claim
WHAT IS MALICIOUS PROSECUTION? Malicious prosecution is a legal claim involving a wrongful lawsuit, which allows a wrongfully-sued defendant to bring an action and recover damages against a plaintiff who sued the defendant without proper cause. Malicious prosecutions occur for a variety of reasons, including a plaintiff’s desire for unjustified revenge, attempts to shut down… Read More »
Probable Cause in Malicious Prosecution Actions
EVERY CLAIM IN A LAWSUIT MUST BE SUPPORTED BY PROBABLE CAUSE Lawsuits often contain many different “claims” or causes of action. Every cause of action must be supported by probable cause–a reasonable belief that the claim is valid and supported by law. A plaintiff (and, in proper cases, a lawyer) who files a claim without… Read More »
Attorneys (& Plaintiffs) Need “Probable Cause” to Bring a Lawsuit
VALID LAWSUITS REQUIRE PROBABLE CAUSE 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… Read More »
What is Malicious Prosecution?
WHAT IS MALICIOUS PROSECUTION? In simple terms, “malicious prosecution” occurs when a plaintiff brings a lawsuit against a defendant with “malice”–specifically, with wrongful ulterior motives–and without probable cause to justify pursuit of a lawsuit. Malicious prosecution takes many forms, and occurs frequently in California (as elsewhere). While proving malicious prosecution can be tricky, malicious prosecution claims… Read More »
What is the Judgmental Immunity Doctrine?
In certain malpractice or professional negligence cases, attorneys may claim “judgmental immunity.” If proven and applicable, the judgmental immunity doctrine may provide a defense to a plaintiff’s malpractice claims against the attorney. ELEMENTS OF THE JUDGMENTAL IMMUNITY DOCTRINE The “Judgmental Immunity Doctrine” states that: (a) Lawyers are not legally required, or expected, to… Read More »
The Attorney’s Duty to Communicate With Clients (Part 2)
Earlier this week, we took a look at the basic obligations attorneys face with regard to client communications in the context of legal representation. Today, we’ll continue that discussion with an in-depth look at what attorneys are required to disclose with regard to the attorney-client relationship. ATTORNEYS MUST INFORM CLIENTS OF ISSUES OR DEVELOPMENTS IMPACTING… Read More »
The Attorney’s Duty to Communicate With Clients (Part 1)
Attorneys Have a Basic Legal Duty to Communicate With Clients Attorneys have a legal duty to maintain “professionally adequate” communication with clients. Proper communication is a critical element of the competent practice of law, and failure to properly communicate with clients may represent a breach of the attorney’s legal duty. Attorneys also have a legal duty… Read More »
What Duty Does the Lawyer Owe to Incidental Beneficiaries of Legal Services?
AS A GENERAL RULE, ATTORNEYS HAVE NO DUTY TO INCIDENTAL BENEFICIARIES “Incidental beneficiaries” are people (or entities, like corporations or limited liability companies) who are not the attorney’s clients but may still benefit (or fail to benefit) from the attorney’s services. Even if a lawyer knows that non-clients will benefit from his or her… Read More »
The Attorney’s Duty of Care
LAWYERS OWE THEIR CLIENTS A “DUTY OF CARE” Licensed attorneys must possess and exercise the general degree of learning and skill common to other lawyers in their geographical area and practicing similar areas of law. Attorneys also need to use reasonable “best judgment” when acting on behalf of clients. While the failure to act in… Read More »
The Elements of an Attorney Malpractice Claim
THE ELEMENTS OF A CAUSE OF ACTIONS FOR LEGAL MALPRACTICE The elements of a legal malpractice claim resemble those in a negligence action, and with good reason. Malpractice is also called “professional negligence,” and it arises from an attorney’s breach of a legally-recognized duty owed to a client. Here are the elements of a… Read More »
