Your client won after being sued in what she believed was a meritless case. Her defense fees were high. She wants you to sue her former adversary and his lawyer for malicious prosecution.

Think long and hard before taking the case. Malicious prosecution is notoriously hard to prove – the probable cause standard is low and malice difficult to prove. Study the elements of the tort carefully. Explain to your client – in writing –the challenges she will face. She will probably draw an anti-SLAPP motion, which will likely be granted. The other side will then recover its reasonable attorneys’ fees and costs in bringing the motion (and fees on appeal if the ruling is affirmed), which will be substantial.

Lawyers who do not educate clients about these significant risks often next find themselves as defendants in malpractice cases, by clients who justifiably ask, “Why didn’t you tell me this would happen?”

Written By: Daniel Hager, AHERN Corporate Counsel

Daniel W. Hager is Corporate Counsel to AHERN Insurance Brokerage and has spent his career practicing in the fields of lawyers’ professional liability, risk management, and legal ethics.

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