California Civil Jury Instructions (CACI)

1505. Affirmative Defense—Reliance on Counsel

[Name of defendant] claims that [he/she] had reasonable grounds for [causing or continuing the criminal proceeding/bringing or continuing a [lawsuit/administrative proceeding]] because [he/she] was relying on the advice of an attorney. To succeed, [name of defendant] must prove both of the following:

1. That [name of defendant] made a full and honest disclosure of all the important facts known to [him/her] to the [district attorney/attorney]; and

2. That [he/she] reasonably relied on the [district attorney/ attorney]’s advice.

New September 2003

Sources and Authority

  • “ ‘Probable cause may be established by the defendants in a malicious institution proceeding when they prove that they have in good faith consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon the advice of the lawyer.’ ” (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556 [8 Cal.Rptr.2d 552], internal citation omitted.)
  • “[I]f the initiator acts in bad faith or withholds from counsel facts he knew or should have known would defeat a cause of action otherwise appearing from the information supplied, [the] defense fails.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 53—54 [118 Cal.Rptr. 184, 529 P.2d 608].)
  • “[T]he defense that a criminal prosecution was commenced upon the advice of counsel is unavailing in an action for malicious prosecution if it appears . . . that the defendant did not believe that the accused was guilty of the crime charged.” (Singleton v. Singleton (1945) 68 Cal.App.2d 681, 695 [157 P.2d 886].)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 509

4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process, § 43.07 (Matthew Bender)

31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and Abuse of Process (Matthew Bender)

14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of Process (Matthew Bender)