Author: Derek S. Underwood, Esq.

In simplest terms, a malicious prosecution claim can be brought against a party who initiates a lawsuit with bad intent and without cause. But what about the party’s lawyer? Can an attorney be accused of bringing a false or malicious claim?

Attorneys do not necessarily know everything about a case and its underlying facts, but they are supposed to use some independent judgment in regards to filing a lawsuit. An attorney should not file a lawsuit where he or she knows, or should know, that the claim is certainly false.

However, even where an attorney knows or believes a claim to be true, it should not be filed as a lawsuit if there is no legal basis for the claim. There are some types of grievances and bad feelings that can not be addressed by a court of law. In those situations, a lawsuit can be viewed as malicious and without cause. For that reason, it is possible for an attorney, and not the client, to be the subject of a malicious prosecution claim. Just this year, a recent federal case involving the music business held that an attorney representing a record label, and not his client, was potentially abusing the legal system by filing a malicious lawsuit without cause.

About the Author
Derek S. Underwood, Esq. is an attorney with Colman & Underwood.