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“Unclean Hands” as a Defense to Malicious Prosecution

What is the “Unclean Hands” Defense?

“Unclean hands” belongs to the group of legal defenses known as “affirmative defenses.”

Affirmative defenses are, as the name suggests, a type of defense in which the defendant claims that some other fact (or set of facts)–normally different from the facts at issue in the case itself–defeat or mitigate the defendant’s conduct in a way that entitles the defendant to prevail.

In simpler terms: affirmative defenses allege that some other facts give the defendant to a legally recognized excuse, and for that reason, the plaintiff should not prevail.

The “unclean hands” defense alleges that the plaintiff engaged in unethical conduct or behaved in bad faith with regard to the subject of the complaint, and therefore should not be allowed a judgment against the defendant. This defense arose from a legal principle that disfavors rewarding wrongdoers for illegal or unethical conduct. However, the “unclean hands” defense is not available in all cases.

Unclean Hands Defenses in Malicious Prosecution Actions

Unclean hands is available as a defense in malicious prosecution actions.<
To prevail on this defense, the defendant in the malicious prosecution action (remember: this was normally the plaintiff in the action where the alleged malicious prosecution occurred) must demonstrate that:

1. The plaintiff engaged in illegal or unconscientious conduct, and
2. The plaintiff’s unconscionable conduct was directly related to the issue before the court.

The relevant conduct could have occurred during the initial legal action, during the malicious prosecution action, or in the intervening time, but generally must relate to one or both legal actions in some way.

Use of the unclean hands defense in malicious prosecution actions is a complex and sometimes dangerous decision, however, and defendants should consult with an experienced attorney before attempting to raise this or any other defense. Because the unclean hands defense requires pointing out the plaintiff’s wrongful or inappropriate conduct, defendants in malicious prosecution actions may appear vindictive–or malicious–if they attempt to defend themselves in this manner. Given that the lawsuit already accuses the defendant of malicious conduct, this defense clearly represents dangerous strategic ground. Experienced legal counsel can assist defendants in determining whether or not to utilize this or any other legal defense, and how to make the arguments most effectively.


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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