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Probable Cause in Malicious Prosecution Actions


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 probable cause may be liable for malicious prosecution. Liability for malicious prosecution may attach to unfounded claims even if the other claims in the lawsuit were supported by probable cause. This is one reason why it’s important for plaintiffs to consult (and hire) experienced legal counsel rather than bringing lawsuits on their own, without legal assistance. Failure to understand the law may result in an unrepresented plaintiff filing unfounded claims–and incurring unintended liability for malicious prosecution.


Sometimes, a claim or lawsuit may appear initially valid, but facts (or legal rulings) during the litigation process may reveal that the claim–or the lawsuit as a whole–lacks merit. Generally, the attorney has a duty to advise his or her client about the impact of newly discovered facts and legal rulings.

If an attorney learns that his or her client’s suit (or claim) is no longer supported by probable cause, the lawyer has a duty to inform the client of this fact and to cease prosecution of the invalid claim(s). If the entire lawsuit is rendered invalid–meaning, if the newly discovered facts or legal ruling reveal that the lawsuit as a whole now lacks probable cause to proceed–the lawyer has a duty to cease prosecuting the action altogether.

Attorneys who fail to cease prosecution of a claim or suit that lacks legal merit may be liable for malicious prosecution and damages measured from the time the attorney learned that the suit lacked merit and/or should have dismissed the action. If the attorney’s client refuses to dismiss the claim(s) or suit which lack merit, the attorney has an obligation to withdraw as counsel of record.

However, knowledge that a claim lacks merit is not the same thing as knowing a claim is “difficult,” “likely to lose,” or “based on unsettled law.” Attorneys are permitted to prosecute cases, and to continue prosecution, as long as they have a legally-justifiable good faith basis for doing so.


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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