The Devil Made You File It

Demon, pushing the puppetYou don’t have a legal duty to accept a civil matter. You can just say, “thanks, but no thanks.” But if you do decide to take on a civil case, you’ve got an obligation under California law to “maintain such actions, proceedings, or defenses only as appear to be legal or just….” Bus & P C §6068(c). Go astray on that obligation and risk actions for malicious prosecution or abuse of process—and potentially be held jointly liable with your client!

Never take a case if you know or should know that the client’s objective is (Cal Rules of Prof Cond 3-200):

  • To bring an action, conduct a defense, assert a position, or take an appeal without probable cause and for the purpose of harassing or maliciously injuring someone; or
  • To present a claim or defense in litigation not warranted under existing law unless based on a good faith argument for a change in the law.

And it’s not only when you first take the case: if you later discover conditions that are prohibited by the California Rules of Professional Conduct or other laws, you must withdraw! See Cal Rules of Prof Cond 3-700.

The consequences of breaking these rules? You may get hit with sanctions as well as a malicious prosecution or abuse of process claims.

Malicious prosecution. An attorney may be held jointly liable with a client for the tort of malicious prosecution if (see Zamos v Stroud (2004) 32 C4th 958, 12 CR3d 54):

  • The prior litigation terminated in favor of the defendant;
  • The attorney lacked probable cause to represent the plaintiff; and
  • The attorney acted maliciously.

When deciding whether to file suit, you can generally rely on information provided by your client. But even if you initiated the suit properly, you may be liable for malicious prosecution if you continue to prosecute it after discovering it wasn’t supported by probable cause.

Abuse of process. An attorney also may be held liable with (or without) the client for the tort of abuse of process. See Barquis v Merchants Collection Ass’n (1972) 7 C3d 94, 104, 101 CR 745; CCP §128.7.

Abuse of process is the use of a court’s process to achieve a purpose for which the process was not designed. Unlike malicious prosecution, abuse of process doesn’t require proof of the favorable termination of an underlying proceeding or proof that the tortfeasor acted without probable cause. And the continued pursuit of meritless litigation for an improper collateral purpose isn’t separately actionable under an abuse of process theory.

Learn all about malicious prosecution and abuse of process actions (and how to avoid them!) in CEB’s California Tort Damages, chapters 10 and 11. These are also two of the issues involved in accepting cases that are discussed in CEB’s California Civil Procedure Before Trial, chapter 1.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

4 Responses

  1. […] ___ 3. Whether the claim or defense could be considered unmeritorious and could present ethical or other problems if vigorous litigation is undertaken. Explain the risk of a malicious prosecution claim. […]

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