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Who Can Be Sued For Malicious Prosecution?

After conclusion of a lawsuit or proceeding that creates a claim of malicious prosecution, injured parties often wonder whether the person who wrongfully sued them can be forced to answer for the malicious lawsuit or other legal proceeding.

So, who can be sued for malicious prosecution?

1. Individuals.

Individuals who file lawsuits or other legal proceedings without reasonable cause, in circumstances which meet the legal test for malicious prosecution, may be subsequently sued (as individuals) by the defendant in the underlying action. Bear in mind that the defendant must prevail in the initial (malicious) action in order to have a case for malicious prosecution.

2. Corporations and Other Legal Entities.

Where a corporation or other legal entity–including the state, in cases of malicious prosecution involving criminal allegations–acts as the plaintiff in a proceeding that gives rise to a claim for malicious prosecution, that entity can generally be sued in a later malicious prosecution action. People and legal entities that act as “agents” and pursue malicious legal actions on behalf of third parties may also be proper defendants, if their actions are active and instrumental in pursuing the malicious action. However, determining whether or not an agent or third-party has liability for malicious prosecution involves significant legal analysis; always review your potential claims with an experienced lawyer to see if malicious prosecution is an appropriate claim in your individual circumstances.

3. Attorneys For the Malicious Plaintiff.

Attorneys who file and pursue a legal action which qualifies as a malicious prosecution may also have legal liability to the defendant in that action. This liability may attach not only to the original attorney who filed the action, but also to attorneys who continue the legal action or proceeding after the first attorney resigns or is replaced. This is particularly true where the original attorney resigned after learning the lawsuit was malicious or lacked a reasonable basis for prosecution (thereby avoiding liability for malicious prosecution), and later counsel accepts and pursues the case despite an awareness that the suit is malicious or unfounded.

However, the fact that a lawsuit qualifies for a malicious prosecution claim does not necessarily make the plaintiff’s attorney equally liable–or liable at all–to the former defendant. Attorneys have a legal right to rely upon information provided by clients, until and unless the attorney knows–or reasonably should know–that the client is providing false information. Where the attorney acts entirely on the basis of reasonable information provided by a client, and that information creates a good-faith basis for prosecution of the underlying lawsuit, the attorney may not be liable for malicious prosecution, even if a claim is ultimately brought against the client.

Malicious prosecution claims against lawyers are tricky and heavily fact-dependent. In many cases, the attorney is not liable for malicious prosecution even if the client is liable. Always consult experienced counsel before making claims of malicious prosecution or filing suit. Your personal rights and experiences may vary.


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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