California Civil Jury Instructions (CACI) (2017)

1511. Wrongful Use of Civil Proceedings—Affirmative Defense—Attorney’s Reliance on Information Provided by Client

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1511.Wrongful Use of Civil Proceedings—Affirmative
Defense—Attorney’s Reliance on Information Provided by Client
When filing a lawsuit for a client, an attorney is entitled to rely on the
facts and information provided by the client.
[Name of attorney defendant] claims that [he/she] had reasonable grounds
for bringing the lawsuit against [name of plaintiff] because [he/she] was
relying on facts and information provided by [his/her] client. To succeed
on this defense, [name of attorney defendant] must prove all of the
following:
1. That [name of client] provided [name of attorney defendant] with
the following information: [specify information on which attorney
relied];
2. That [name of attorney defendant] did not know that this
information was false or inaccurate; and
3. That [name of attorney defendant] relied on the facts and
information provided by the client.
New June 2013; Revised June 2014
Directions for Use
Give this instruction if an attorney defendant alleges that he or she relied on
information provided by the client to establish probable cause. If a civil proceeding
other than a lawsuit is involved, substitute the appropriate word for “lawsuit”
throughout.
The presence or absence of probable cause on undisputed facts is a question of law
for the court. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881
[254 Cal.Rptr. 336, 765 P.2d 498]; CACI No. 1501, Wrongful Use of Civil
Proceedings.) The questions here for the jury to resolve are what information was
communicated to the attorney that established apparent probable cause, and whether
the attorney knew that the information was inaccurate.
The attorney generally has no obligation to investigate the information provided by
the client before filing suit. (See Sheldon Appel Co., supra, 47 Cal.3d at pp.
882–883.) Therefore, there is no liability under a theory that the attorney should
have known that the information was false. Actual knowledge is required. But if
the attorney later learns that the client has not been truthful, the attorney may no
longer rely on the client’s information to continue the lawsuit. (Daniels v. Robbins
(2010) 182 Cal.App.4th 204, 223 [105 Cal.Rptr.3d 683].)
Sources and Authority
• “In general, a lawyer ‘is entitled to rely on information provided by the client.’
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If the lawyer discovers the client’s statements are false, the lawyer cannot rely
on such statements in prosecuting an action.” (Daniels, supra, 182 Cal.App.4th
at p. 223, internal citation omitted.)
• “[W]hen evaluating a client’s case and making an initial assessment of
tenability, the attorney is entitled to rely on information provided by the client.
An exception to this rule exists where the attorney is on notice of specific
factual mistakes in the client’s version of events. Absent such notice, an
attorney ‘may, without being guilty of malicious prosecution, vigorously pursue
litigation in which he is unsure of whether his client or the client’s adversary is
truthful, so long as that issue is genuinely in doubt.’ A respected authority has
summed up the issue as follows: ‘Usually, the client imparts information upon
which the attorney relies in determining whether probable cause exists for
initiating a proceeding. The rule is that the attorney may rely on those
statements as a basis for exercising judgment and providing advice, unless the
client’s representations are known to be false.’ ” (Morrison v. Rudolph (2002)
103 Cal.App.4th 506, 512–513 [126 Cal.Rprt.2d 747], disapproved on other
grounds in Zamos v. Stroud (2004) 32 Cal.4th 958, 972[12 Cal.Rptr.3d 54, 87
P.3d 802], internal citations omitted.)
• “The trial court found the undisputed facts establish that the lawyers had
probable cause to assert the fraudulent inducement claim. We agree. It is
undisputed that the allegations in the complaint accurately reflected the facts as
given to the lawyers by [client] and that she never told them those facts were
incorrect. The information provided to the lawyers, if true, was sufficient to
state a cause of action . . . .” (Swat-Fame, Inc. v. Goldstein (2002) 101
Cal.App.4th 613, 625 [124 Cal.Rptr.2d 556], disapproved on other grounds in
Zamos, supra, 32 Cal.4th at p. 972.)
• “Normally, the adequacy of a prefiling investigation is not relevant to the
determination of probable cause.” (Swat-Fame, Inc., supra, 101 Cal.App.4th at
p. 627, disapproved on other grounds in Zamos, supra, 32 Cal.4th at p. 972.)
• “If the lawyer discovers the client’s statements are false, the lawyer cannot rely
on such statements in prosecuting an action.” (Daniels, supra, 182 Cal.App.4th
at p. 223.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 471 et seq., 510
4Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.05 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.27 et seq. (Matthew Bender)
1512–1519. Reserved for Future Use
CACI No. 1511 MALICIOUS PROSECUTION
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