"I'd Go Back If I Were You" -- Attorney Who Continues Litigation After Discovering Absence of Probable Cause May Be Liable for Malicious Prosecution

Resolving a conflict between districts of the Court of Appeal, the California Supreme Court has held that an attorney who had probable cause to commence a lawsuit but who later "continues to prosecute it after learning it is not supported by probable cause" may be held liable to the defendant in that case in a later action for malicious prosecution.

In order to establish a claim against an attorney for malicious prosecution, the former defendant must generally prove (1) that the prior litigation ended in a manner favorable to the defendant on its merits, (2) that the prior action had been pursued as a result of malice, and (3) that the attorney lacked "probable cause" -- a reasonable belief that the claims were meritorious -- to pursue the action. The majority of California appellate courts had indicated that the presence or absence of "probable cause" should be determined as of the inception of the prior lawsuit. More recently, however, two appellate courts had indicated that an attorney who had probable cause to begin a lawsuit might still be liable for malicious prosecution if the attorney later discovered that the facts or law necessary to support the claim did not in fact exist, but still continued to pursue that now-unsupported claim. The Supreme Court has now adopted the latter view, which it concludes brings California law into consistency with the majority of other states that have considered the issue:

Just as it is without support in authority, the limitation defendants urge is also without support in principle. Malicious prosecution ‘is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice.’ [Citation omitted.] Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset. [Citation omitted.] As the Court of Appeal in this case observed, ‘It makes little sense to hold attorneys accountable for their knowledge when they file a lawsuit, but not for their knowledge the next day.'

(Emphasis added.) The Court's opinion in Zamos v. Stroud (April 19, 2004), Case No. S118032, may be found at these links in PDF and Word formats.

Update: David Giacalone -- and others -- comment.

Incidental Intelligence:

Attorneys may draw other lessons from the facts underlying this case . . . . The plaintiffs in the malicious prosecution case were themselves attorneys. They had represented a client in a lawsuit relating to a foreclosure on the client's home; that case was settled, with the attorneys receiving a significant contingent fee. The client later retained a second set of attorneys to sue the first, claiming that she had been fraudulently induced by her prior counsel to accept the settlement, so that counsel could collect a fee.

Early on in the second suit, the original attorneys provided copies of transcripts of proceedings in the first case that established without any question that the client had entered into the settlement without any misconceptions concerning the facts. Notwithstanding the clear evidence, the second attorneys continued to pursue the fraud action. At trial in that action, the court granted a motion for nonsuit, holding that the client and her second set of attorneys had not presented evidence sufficient to reach the jury on the fraud claims. Following that judgment, the original attorneys sued both the former client and the second set of attorneys for malicious prosecution, on the ground that the second attorneys could not possibly have believed the claim was meritorious once they were presented with the transcripts contradicting the client's version of events.

Comments

[PH]

I was malicioulsy prosecuted with a frivilous lawsuit for 14 mos confirmed by LASC, Appeallate Court,and City Attorney Cases.There was no case law for lawsuit filed. Plaintiffs were further cited for oridinance violations. However, I have been unable to find an attorney for this.

Do prospective attorneys emphasis with the malicious prosecuting attorney's? Where can one start to find an attorney in Los Angeles to persue this matter via contingency? Since, malicious prosecution left the defendent with economic harm preventing billable attorney retainers.

[ph]

I was malicioulsy prosecuted with a frivilous lawsuit for 14 mos confirmed by LASC, Appeallate Court,and City Attorney Cases.There was no case law for lawsuit filed. Plaintiffs were further cited for oridinance violations. However, I have been unable to find an attorney for this.

Do prospective attorneys emphasis with the malicious prosecuting attorney's? Where can one start to find an attorney in Los Angeles to persue this matter via contingency? Since, malicious prosecution left the defendent with economic harm preventing billable attorney retainers.