Competence & Malpractice · 6-12% of the exam
12.2.3Litigation Privilege and the Malicious Prosecution Defense
Why
Advocacy requires making allegations the other side will call false and damaging, and filing claims that may not survive. A lawyer who had to weigh a defamation suit before every assertion, or a malicious prosecution suit before every filing, would advocate cautiously at the client's expense. These doctrines take that fear out of the calculation.
Plain English
A lawyer's statements made in connection with a judicial proceeding in which the lawyer is counsel are absolutely privileged against defamation, even when false and harmful, so long as they relate to the proceeding; statements made outside litigation receive no such protection. And a lawyer who filed a claim has a complete defense to malicious prosecution if probable cause existed at filing, even where the claim ultimately failed.
Litigation privilege and malicious prosecution
Two points here, and the second one holds even when the claim loses:
- Litigation privilege (defamation): a lawyer's statements made in connection with a judicial proceeding in which the lawyer is counsel are absolutely privileged against defamation, even if false and harmful, provided the statement is related to the proceeding; statements outside litigation receive no special protection
- Malicious prosecution defense: a lawyer who initiates a claim has a complete defense if probable cause existed at filing; good-faith reliance on probable cause is a defense even if the claim ultimately fails
Example 1
Ex. 1
Ana represented a technology company that alleged a rival had engaged in bid-rigging on a government contract. She filed a fraud claim based on financial records her client provided and a written analysis prepared by a retained forensic accountant. Both sources supported a coherent theory of intentional misrepresentation. At trial, the accountant's methodology was effectively challenged on cross-examination. The jury found no fraud. The opposing firm then sued Ana personally for malicious prosecution.
Ana prevails. The question is whether probable cause existed when she filed, not whether the claim succeeded at trial. She had client documents, an expert opinion, and a coherent legal theory at the time of filing. That combination constitutes probable cause. The fact that the claim later failed doesn't transform good-faith litigation into malicious prosecution. Date-stamp what Ana held: the records, the analysis, and the theory all predate the cross-examination that undid them.
Trap
Questions · 1
Q 01ch12-e07
Question 1 of 1 · Rule 1.8
Attorney filed a fraud action for Client against a rival bidder on a municipal contract, alleging that the rival had rigged its bid. Before filing, Attorney reviewed accounting records Client supplied and a written analysis from a retained forensic accountant, both of which supported a coherent theory of intentional misrepresentation. At trial the accountant's method collapsed under cross-examination and the jury found no fraud. The rival then sued Attorney personally for malicious prosecution, pointing to the verdict and to the accountant's discredited work. Attorney answered that the records, the analysis, and the theory were all in hand on the day of filing. Is Attorney subject to civil liability?
Keys 1 to 4 choose.