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Defenses to Malicious Prosecution: Advice of Counsel

Reliance on the Advice of Legal Counsel is an Affirmative Defense to Malicious Prosecution Claims.

“Reliance on the advice of counsel” is one of several affirmative defenses available to the defendant in a malicious prosecution action. While substantive defenses attempt to prove the defendant’s innocence of the charges,affirmativedefenses invoke the existence of other facts which excuse a defendant’s otherwise wrongful conduct. In other words, a substantive defense attempts to prove the defendant did not do the things the plaintiff claims, while an affirmative defense claims that even though the defendant engaged in wrongful conductthe conduct is legally excused and the defendant should not be liable to the plaintiff.

Generally, a party who acted in reliance on the advice of legal counsel may claim that reliance as a  defense to claims of malicious prosecution. If proven (and if there is not also affirmative evidence that the defendant knowingly engaged in malicious prosecution on other grounds), the defendant will have no liability to the plaintiff on the claim.

How Does a Party Establish That (S)he Relied on Advice of Counsel?

A client claiming “reliance on the advice of counsel” as a defense to malicious prosecution must prove:

— The client made a “full and fair” disclosure of all known facts to his or her attorney;

— The attorney provided advice (generally, advice to proceed with the suit) that resulted in the client pursuing an action that (actually or allegedly) constituted malicious prosecution;

— The client actually relied on the relevant advice (as opposed to relying on information otherwise known to or learned by the client).

These issues are questions of fact, which are normally reviewed and determined by a jury (except in trials without a jury, or where the evidence is so overwhelming that only one reasonable interpretation is possible, when a judge will make the decision).

If the client failed to fully disclose all relevant facts to his or her counsel, or did not act in good faith with regard to the underlying suit or claim (regardless of legal counsel’s advice), the attempt to claim reliance on advice of counsel as a defense will fail.

Merely relying on a lawyer’s advice, without more, is not enough to eliminate a defendant’s liability for malicious prosecution. Clients must behave responsibly with regard to legal actions, must disclose all relevant facts to their lawyers, and cannot send lawyers on a “fishing expedition” in the malicious (or even ill-intentioned) hope that the lawyer will “find a way” to file a lawsuit. However, where the attorney truly is at fault for the malicious prosecution action, and the client unknowingly went along with the lawyer’s advice, the “reliance on the advice of counsel” defense may provide relief from unjust liability in a subsequent malicious prosecution action.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. 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 lawyer immediately for an evaluation of your possible rights and claims.

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