CACI No. 1511. Wrongful Use of Civil Proceedings - Affirmative Defense - Attorney’s Reliance on Information Provided by Client

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun] had
reasonable grounds for bringing the lawsuit against [name of plaintiff]
because [he/she/nonbinary pronoun] was relying on facts and information
provided by [his/her/nonbinary pronoun] 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, May 2020
Directions for Use
Give this instruction if an attorney defendant alleges reliance 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.’
If the lawyer discovers the client’s statements are false, the lawyer cannot rely
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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 (11th ed. 2017) Torts, §§ 554, 603
4 Levy 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
MALICIOUS PROSECUTION CACI No. 1511
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Copyright Judicial Council of California

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