Advanced Torts - Spring 2007
Professor Ralph Brill
Malicious Prosecution

MALICIOUS PROSECUTION

REVIEW AND COMPLETION OF CHAPTER:

1. UNDERLYING POLICIES AFFECTING THIS TORT.

A. INTEREST IN PREVENTING THE INTEGRITY OF THE LEGAL SYSTEM TO BE UNDERMINED BY THE INTENTIONAL, NEGLIGENT, OR EVEN INNOCENT CONDUCT OF

1. JUDGES

2. LAWYERS

3. LITIGANTS

4. WITNESSES

5. JURIES

6. POLICE

A JUDGE WHO MAKES A PALPABLY WRONG RULING;

A WITNESS WHO COMMITS PERJURY;

A LITIGANT OR LAWYER WHO BRINGS WHOLLY UNJUSTIFIED SUITS

ALL INFLICT HARM ON THE LEGAL SYSTEM AND THE PUBLIC INTEREST.

SO, WHERE SOMEONE HAS BEEN WRONGLY PROSECUTED, OR EVEN IN A CIVIL CASE WHERE SOMEONE HAS BEEN PUT THROUGH THE PAIN, TIME, EFFORT, AND FINANCIAL BURDEN OF DEFENDING ONESELF, THE NATURAL INCLINATION IS TO SEEK RELIEF IN THE COURTS.

WHAT ARE THE COMPETING INTERESTS?

HARD TO SAY WE SHOULD PROTECT PEOPLE WHO MISUSE THE LEGAL SYSTEM FOR MALICIOUS REASONS?

1. THE THREAT OF RETALIATORY LAWSUITS MAY DISCOURAGE THE PROSECUTION OF THOSE WE MAY ARGUABLY BELIEVE HAVE COMMITTED CRIMES, OR WHO HAVE COMMITTED CIVIL WRONGS.

THE "CHILLING EFFECT" ARGUMENT.

2. THE SLIPPERY SLOPE ARGUMENT--IF A SECOND COURT CAN IMPOSE LIABILITY FOR WHAT WAS DONE IN THE FIRST CASE, THEN A THIRD COURT CAN QUESTION THE SECOND, AND SO ON.

3. THE STABILITY ARGUMENT. THERE SHOULD BE SOME FINALITY TO WHAT A COURT HAS DECIDED, WITH THE PROTECTIONS AFFORDED OF APPEAL, SOME COLLATERAL ATTACK (HABEAS CORPUS), OTHER MEASURES (RULE 11 SANCTIONS, ETC.)

THE CONFLICTING POLICIES HAVE LED TO TWO MAJOR RESULTS.

1. COURTS OR LEGISLATURES HAVE PROTECTED MANY OF THE ACTORS IN THE LEGAL PROCESS BY RECOGNIZING BROAD PRIVILEGES AND IMMUNITIES.

2. WHILE ALLOWING SUITS FOR DAMAGES, THE COURTS HAVE ESTABLISHED A SERIES OF DIFFICULT ELEMENTS FOR THE NOW PLAINTIFF TO MAKE OUT A PRIMA FACIE CASE.

FIRST: IMMUNITIES.

DURING LITIGATION: AT TRIAL, ITSELF, AND FOR MUCH OF THE PRE-TRIAL PROCEEDINGS:

ALMOST EVERYONE INVOLVED HAS ABSOLUTE IMMUNITY FOR COMMUNCIATIONS MADE.... THE CHILLING EFFECT ARGUMENT WINS OUT.

THUS, JUDGES ARE IMMUNE FOR THEIR RULINGS IN A CASE OVER WHICH THEY HAVE JURISDICTION, EVEN IF IT IS ERRONEOUS OR EVEN MALICIOUS. EVEN IF BRIBED? (AND AS WE WILL SEE IN DEFAMATION, IMMUNE FOR ANYTHING THEY SAY DURING THE TRIAL IF REMOTELY PERTINENT TO THE PROCEEDINGS).

A WITNESS WHO COMMITS PERJURY DURING A TRIAL IS NOT SUBJECT TO CIVIL SUIT BY THOSE HARMED.

AND NO ACTION, EVEN SECTION 1983, LIES AGAINST THE PROSECUTOR OR GOVERNMENTAL WITNESSES, OR GRAND JURORS FOR THEIR IN-TRIAL CONDUCT OR WORDS.

BEFORE TRIAL: SLIGHTLY DIFFERENT.

WHILE PERJURY IS NOT ORDINARILY ACTIONABLE, SOME COURTS HAVE RECOGNIZED AN ACTION AGAINST LITIGANTS, GOVERNMENTAL OR PRIVATE, FOR INTENTIONAL SPOLIATION (SOME EVEN FOR NEGLIGENT) OF EVIDENCE.

JUDGES, PROSECUTORS, GRAND JURORS, ETC. ARE USUALLY IMMUNE FOR INSTITUTING LEGAL PROCEEDINGS.

BUT PRIVATE INDIVIDUALS AND POLICE OFFICERS ARE NOT. AND THIS MAY ALSO INCLUDE PRIVATE ATTORNEYS.

SO, THE BOTTOM LINE FOR MALICOUS PROSECUTION, AND WRONGFUL CIVIL PROCEEDINGS, IS:

THAT THEY ARE LARGELY AVAILABLE ONLY AGAINST PRIVATE INDIVIDUALS OR POLICE; HOWEVER, STILL DIFFICULT SUITS TO ESTABLISH.

MALICIOUS PROSECUTION (WRONGFUL CRIMINAL PROCEEDINGS)

ELEMENTS:

1. THE NOW DEFENDANT INITIATED CRIMINAL PROCEEDINGS AGAINST THE NOW PLAINTIFF.

A. CRIMINAL PROCEEDINGS INCLUDE THOSE WITH POSSIBLE PENALTY OF LOSS OF LIBERTY, BUT ALSO INCLUDE THOSE MERELY SUBJECT TO FINE. THEY EVEN INCLUDE MINOR QUASI-CRIMINAL ACTIONS, LIKE TRAFFIC OR ORDINANCE VIOLATIONS.

B. THE NOW DEFENDANT MUST HAVE INITIATED OR CONTINUED THE ACTION.

TYPICAL, IS THE FILING OF A CRIMINAL COMPLAINT, CHARGING THE NOW PLAINTIFF WITH A CRIME.

HOWEVER, THE NOW DEFENDANT MUST BE THE "BUT FOR" CAUSE OF THE PROSECUTION.

SO, IF MERELY FILE A COMPLAINT, AND THE POLICE OR PROSECUTORS DO NOT GO FORWARD ON IT, AND NO CRIMINAL PROSECUTION TAKES PLACE == NO MALICIOUS PROSECUTION ACTION.

ALSO, IF THE PROSECUTOR INVESTIGATES AND IN THE END DECIDES TO GO FORWARD BASED ON OTHER EVIDENCE, SO THAT THE NOW DEFENDANT'S COMPLAINT IS NOT THE BUT FOR CAUSE... NO ACTION.

BUT IF THE ACTION PROCEEDS BASED ON THE COMPLAINT, THE NOW DEFENDANT IS THE INITIATOR.

OR IF THE PROSECUTORS ARE THINKING ABOUT DROPPING CHARGES, AND THE NOW DEFENDANT PUSHES THEM TO KEEP IT GOING, HE/SHE IS RESPONSIBLE FOR CONTINUING THE ACTION.

THE CONDUCT MAY BE OTHER THAN BRINGING THE COMPLAINT. IT MAY BE PUTTING PRESSURE ON THE PROSECUTION TO GO FORWARD BY ONE HAVING CLOUT OR POWER OR INFLUENCE.

WHATEVER UNDER STATE LAW CONSTITUTES THE INITIATION OF PROSECUTION IS NEEDED.... BE IT THE GRAND JURY INDICTING, OR THE PROSECUTOR FILING AN INFORMATION, OR INDICTMENT.

WHAT IF THE CONDUCT IS BEING THE STAR WITNESS, AND LYING?

NO MALICIOUS PROSECUTION, EVEN IF THE TESTIMONY IS WHAT CAUSES THE NOW PLAINTIFF'S CONVICTION. IT WAS NOT THE INITIATION OR CONTINUATION OF THE ACTION, AND, AS STATED BEFORE, EVEN IF PERJURED, IS IMMUNE FROM CIVIL LIABILITY.

2. THE SECOND ELEMENT IS THAT THE CRIMINAL PROCEEDINGS MUST TERMINATE FAVORABLY TO THE NOW PLAINTIFF.

MALICIOUS PROSECUTION IS NOT TO BE USED AS A DEVICE FOR A COLLATERAL ATTACK ON A CONVICTION, SO SOMEWHERE THE NOW PLAINTIFF MUST WIN THE CASE.

SOME OF THE WAYS:

ACQUITTAL

REFUSAL OF MAGISTRATE TO HOLD OVER FOR TRIAL

REFUSAL OF GRAND JURY TO INDICT

VOLUNTARY DISMISSAL BY PROSECUTION

REVERSAL ON APPEAL ON MERITS

BUT IT MUST BE A DETERMINATION ON THE MERITS

IF ENDS BECAUSE OF FAILURE TO GO TO TRIAL WITHIN THE CONSTRAINTS OF THE SPEEDY TRIAL ACT.... NO

IF REVERSED ON APPEAL BECAUSE OF PROSECUTORIAL MISCONDUCT, AND POSSIBLE RETRIAL...NO

OR A COMPRIMISE SETTLEMENT, "WE WILL DROP CHARGES IF YOU ...."

OF COURSE, FAILURE TO INDICT DOESN'T MEAN THAT THERE WON'T BE A SUBSEQUENT INDICTMENT AFTER NEW EVIDENCE IS FOUND, SO LONG AS STATUTE OF LIMITATIONS HASN'T RUN. BUT THE ORIGINAL PROCEEDINGS MEET THE REQUIREMENTS OF INITIATION AND TERMINATION.

3. LACK OF PROBABLE CAUSE

THIS MEANS THAT THE NOW DEFENDANT INITIATED OR CONTINUED THE PROCEEDINGS AT A TIME WHEN HE/SHE LACKED REASONABLE GROUNDS FOR BELIEVING EITHER THAT A CRIME HAD BEEN COMMITTED, OR THAT THE NOW PLAINTIFF HAD COMMITTED IT, OR BOTH.

DEFENDANT WILL CLAIM THAT HE/SHE HAD AN HONEST BELIEF IN THE TRUTH

IS IT A SUBJECTIVE TEST? OR OBJECTIVE?

IF SUBJECTIVE, D CAN CLAIM THE REVELATION CAME TO D IN A DREAM, AND HONESTLY BELIEVES IT. BUT NO BASIS IN FACT.

THE DEFENDANT MUST HAVE HAD A REASONABLE BASIS IN FACT. IF A REASONABLE PERSON WOULD HAVE INVESTIGATED FURTHER BEFORE MAKING CHARGES, THERE IS NO PROBABLE CAUSE.

REMEMBER, IT'S THE BELIEF AT THE TIME OF INITIATION OF CHARGES (OR CONTINUATION).

IT DOESN'T MEAN THAT A DEFENDANT ALWAYS HAS TO SEARCH FURTHER. BUT IF THE FACTS ARE AMBIGUOUS, IT MAY BE UNREASONABLE NOT TO SEARCH FURTHER.

USUAL EXAMPLE:

SUSPECTED SHOPLIFTING.

IF SECURITY GUARD SEES THE APPARENT THEFT, PROBABLY NO NEED FOR FURTHER INVESTIGATION.

IF IT IS REPORTED TO SECURITY, OR THE MOVEMENTS ARE AMBIGUOUS, PROBABLY NEED TO CHECK TO SEE IF MERCHANDISE IS MISSING, OR ASK THE SUSPECT FOR EXPLANATION. (ALSO MAY HAVE REASONABLE PRIVILEGE TO INVESTIGATE AND SEARCH).

THE QUESTION OF WHETHER THE FACTS ALLEGED CONSTITUTE PROBABLE CAUSE IS A QUESTION OF LAW, AND FOR THE JUDGE TO DECIDE.

IF THERE IS A CONFLICT IN THE EVIDENCE AS TO WHAT DEFENDANT KNEW OR DIDN'T, THAT'S FOR THE JURY TO RESOLVE, BUT JUDGE MUST DECIDE IF THE CLAIMED FACTS CONSTITUE PROBABLE CAUSE.

NOTES GO THROUGH SOME PROCEDURAL EVENTS AS AFFECTING PROOF OF PROBABLE CAUSE OR LACK THEREOF.

A. GRAND JURY FAILS TO INDICT, OR MAGISTRATE DISCHARGES FOR LACK OF PROBABLE CAUSE. MANY HOLD IT IS CONCLUSIVE. BUT THAT'S WRONG. SHOULD BE EVIDENCE THAT NOW DEFENDANT LACKED PROBABLE CAUSE, BUT NOT CONCLUSIVE. WHY?

B. MAGISTRATE'S COMMITMENT OR GRAND JURY'S INDICTMENT IS EVIDENCE THAT THERE WAS PROBABLE CAUSE. BUT SHOULD NOT BE CONCLUSIVE. (GRAND JURY WILL INDICT A HAM SANDWICH)

C. CONVICTION IS SAID TO BE CONCLUSIVE ON ISSUE,BUT THAT TOO IS WRONG. WHY?

D. ADVICE OF COUNSEL, BASED ON FULL FACTS.

4. MALICE IS REQUIRED.

USUAL IS HATRED, SPITE, ILL WILL.

BUT FOR CRIMINAL PROSECUTION, THIS WILL OFTEN BE TRUE, EVEN IF WELL INTENTIONED. HATE THE SUSPECTED CRIMINAL.

SO BROADER DEFINITION IS ANY MOTIVE BEYOND THAT OF BRINGING AN ALLEGED CRIMINAL TO JUSTICE.

A. TO COERCE COLLECTION OF A DEBT.

January 17, 2007ANIMOSITY, SUCH AS OVER A PREVIOUS DEAL, OR LOVE AFFAIR.

C. RACIAL ANIMUS.

ONCE AGAIN, PROCEDURAL HELP IS GIVEN BY THE DOCTRINE THAT A LACK OF PROBABLE CAUSE AFFORDS A REASONABLE INFERENCE THAT THE NOW DEFENDANT WAS MOTIVATED BY MALICE.

NON-CONCLUSIVE, SINCE SOMEONE CAN BE UNREASONABLE WITHOUT HAVING ANY IMPROPER MOTIVE.

BUT THIS PERMISSIBLE INFERENCE MAY BE ENOUGH TO GET THE CASE TO THE JURY.

5. DAMAGES ARE REQUIRED, BUT EASILY SHOWN.

HARM TO REPUTATION

HUMILIATION

MENTAL DISTRESS

COSTS

ATTORNEY'S FEES

LOST TIME DEFENDING ONESELF

IMPRISONMENT TIME

6. SPECIAL DEFENSE

THE NOW DEFENDANT HAS A UNIQUE DEFENSE IN THESE CASES --- EVEN THOUGHT THE NOW PLAINTIFF HAS BEEN ACQUITTED IN THE ORIGINAL PROSECUTION, THE NOW DEFENDANT MAY SHOW THAT THE NOW PLAINTIFF WAS GUILTY. HOW IS THAT POSSIBLE? DOUBLE JEOPARDY?

NO. THE PRIOR FINDING OF "NOT GUILTY" MEANS, OF COURSE, "NOT PROVEN GUILTY BEYOND A REASONABLE DOUBT."

IN A CIVIL CASE, THE STANDARD OF PROOF IS LOWER, A PREPONDERANCE OF THE EVIDENCE.

SO, THE POLICY IS NOT TO ALLOW ONE ACTUALLY GUILTY TO RECOVER.

WRONGFUL CIVIL PROCEEDINGS

QUESTIONS:

SHOULD THIS ACTION BE RECOGNIZED?

SHOULD THE ELEMENTS BE THE SAME?

FOR MANY MANY YEARS, COURTS RELUCTANT TO ALLOW ANY ACTION AGAINST PARTICIPANTS IN A CIVIL SUIT. WHILE THERE WERE SUBSTANTIAL CONSEQUENCES, NOT THE LEAST OF WHICH WERE COSTS, AND REPUTATIONAL HARM, FELT NOT THE SAME AS LOSS OF LIBERTY OR POTENTIAL CRIMINALIZATION, AND THE SYSTEM SHOULD BE FREELY OPEN.

FRIEDMAN V. DOZORC.

THREE DIFFERENT THEORIES ATTEMPTED AGAINST THE PRIOR PLAINTIFF AND HIS LAWYER.

NEGLIGENCE.

COURT FINDS THAT FORMER PLAINTIFF AND LAWYER NOT LIABLE FOR NEGLIGENTLY BRINGING A LAWSUIT AGAINST THE NOW PLAINTIFF. WHY NOT? WHAT CONSIDERATIONS?

ANY ARGUMENTS THAT COULD BE MADE THAT WOULD JUSTIFY THIS ACTION? ANALOGIES?

RULE 11

ANDREWS DISSENT IN PALSGRAF

HISTORY OF PRIVITY REQUIREMENT

TARASOFF KIND OF ANALYSIS

ABUSE OF PROCESS

WHAT IS THE DIFFERENCE FROM MALICIOUS PROSECUTION? FROM FALSE IMPRISONMENT?

THE GIST OF THIS ACTION IS THE MISUSE OF ANY LEGAL PROCESS, NOT JUST THE INITIATION OF THE LEGAL PROCESS.

IT IS SIMILAR IN THAT IT TOO REQUIRES MALICE, AN IMPROPER PURPOSE, BUT IT DOES NOT REQUIRE LACK OF PROBABLE CAUSE, NOR INITIATION OR TERMINATION OF THE PROCEEDINGS.

WHAT WOULD BE A TYPICAL EXAMPLE?

D HAS A PERSONAL GRUDGE AGAINST P. DURING A LAWSUIT BETWEEN THE TWO OF THEM, D SUBPOENAS P AS A WITNESS. P IS REQUIRED TO BE AT THE COURT FOR THREE DAYS, BUT IS NOT CALLED DURING THAT TIME, AND EVENTUALLY IS RELEASED. BUT DURING THAT TIME, P LOSES INCOME OR BUSINESS. SO, THIS IS MISUSING LEGAL PROCESS....THE SUBPOENA OF WITNESSES....FOR AN IMPROPER MOTIVE.

WHILE ABUSE OF PROCESS MAY BE BASED ON BRINGING A SUIT...FILING A COMPLAINT.... IT IS NOT AN ABUSE OF PROCESS TO BRING A POSSIBLY JUSTIFIABLE SUIT, JUST BECAUSE IT IS ULTIMATELY FOUND NON-MERITORIOUS.

JUMPING AHEAD, GRAINGER V. HILL IS A VALID EXAMPLE: THREAT OF ARREST IF NOW PLAINTIFF DIDN'T EARLY PAY ON MORTGAGE, AND HAVING HIM ARRESTED WHEN HE DIDN'T. WHILE ARREST WAS A VALID PROCESS AT THE TIME, IT USUALLY ISN'T IN CIVIL CASES NOW; BUT HERE IT WAS NOT DONE FOR VALID PURPOSE, BUT IMPROPER PURPOSE, TO FORCE P TO PAY EARLY. THE PROCESS WAS ABUSED.

THERE CAN BE SOME OVERLAP OF ABUSE OF PROCESS WITH FALSE IMPRISONMENT AS WELL.

BUT OF COURSE THAT REQUIRES INTENTIONALLY CAUSING ONE'S ARREST OR CONFINEMENT, WITHOUT PRIVILEGE. ABUSE DOES NOT REQUIRE ARREST....IT'S BROADER....AND IT ADDITIONALLY REQUIRES MALICE, WHICH FALSE IMPRISONMENT DOES NOT.

THIRD COUNT IS FOR MALICIOUS CIVIL SUIT, OR WRONGFUL CIVIL PROCEEDINGS.

MANY COURTS DO NOT RECOGNIZE THIS AS A VIABLE CAUSE OF ACTION, LIMITING POTENTIAL LIABILITY TO CRIMINAL PROSECUTIONS ONLY -- THAT IS, NO ACTION FOR WRONGFUL CIVIL PROCEEDINGS, BUT ONLY FOR MALICIOUS PROSECUTION.

OTHERS EXTEND IT TO CIVIL PROCEEDINGS, BUT ONLY IF THE CIVIL ACTION INVOLVES SIMILARITIES TO CRIMINAL ACTIONS, SUCH AS COMMITMENT TO A MENTAL INSTITUTION, OR OTHER LOSS OF LIBERTY, OR SEIZURE OF PROPERTY, AND NOT JUST MENTAL DISTRESS, HUMILIATION OR OTHER MONEY DAMAGES.

FINALLY, SUBSTANTIAL NUMBER PERMIT THE ACTION ON THE SAME OR SIMILAR REQUIREMENTS TO MALICIOUS CRIMINAL PROSECUTION.

COURT, IN REJECTING THE APPLICABILITY OF THE ACTION, REVIEWS DEAN PROSSER'S ARGUMENTS FOR ALLOWING THE CIVIL ACTION.

1. DEAN PROSSER ARGUES THAT THE MERE AWARD OF COSTS, WHICH ARE GIVEN TO THE WINNING PARTY, DO NOT COME CLOSE TO SATISFYING THE DAMAGES SUFFERED IN DEFENDING AN UNWARRANTED CIVIL SUIT.

COURT RESPONDS THAT THIS IS TRUE, BUT IT DOESN'T JUSTIFY AN AWARD WITHOUT SPECIAL DAMAGES (AND HERE IT MEANS THE LOSS OF LIBERTY, LOSS OF PROPERTY, ETC.), OR DICTATE A SEPARATE SUIT.

WHAT DO YOU THINK OF THE COURT'S RESPONSE?

WHAT DO YOU THINK THE COURT IS AFRAID OF?

2. PROSSER ARGUED THAT THERE IS NO POLICY FAVORING VEXATIOUS SUITS, KNOWN TO BE GROUNDLESS.

THE COURT SAYS THERE MAY BE OTHER WAYS SHORT OF A LAWSUIT TO DEAL WITH THIS PROBLEM.

WHAT??

3. PROSSER CONTENDED THAT THE RECOGNITION OF THE ACTION WOULD NOT LEAD TO INTERMINABLE LAWSUITS, WITH THE WINNER OF THE FIRST SUING THE LOSER OR HIS/HER ATTORNEY, AND THEN IF THAT IS LOST, BEING HIT WITH A FURTHER MALICIOUS CIVIL PROCEEDINGS SUIT BY THE WINNER IN THE SECOND TRIAL. HE ARGUED THAT THE HEAVY BURDEN OF PROOF OF MALICE AND LACK OF PROBABLE CAUSE WOULD PREVENT THIS FROM HAPPENING.

WHAT DO YOU THINK OF COURT'S RESPONSE TO THAT, AT THE BOTTOM OF 1006?

IS THE ARGUMENT ON THE TOP OF 1007 BETTER? FEAR OF A STRATEGIC WEAPON THAT WOULD INHIBIT PEOPLE AND LAWYERS TO FILE SUIT.

WHAT ABOUT "THE CURE FOR AN EXCESS OF LITIGATION IS NOT MORE LITIGATION"?

WHAT DO YOU THINK OF THE COURT'S DISCUSSION OF THE ATTORNEY'S ETHICAL DUTIES TO COMPLY WITH WISHES OF HER/HIS CLIENT,BOTTOM OF 1007-08?

ON PAGE 1008, PAR. 6, THE COURT SAYS THAT A JURY-SUBMISSIBLE CLAIM OF MEDICAL MALPRACTICE MAY BE PRESENTED EVEN WITHOUT SPECIFIC TESTIMONY THAT THE DEFENDANT PHYSICIAN VIOLATED THE APPLICABLE STANDARD OF CARE.

WHEN IS THAT? ISN'T THAT THE VERY RAREST OF CASES?

COURT SAYS, ATTORNEY MAY PROCEED IN THE GOOD-FAITH BELIEF THAT PROOF WILL SUCCEED, ONLY TO FIND THE COURT DISAGREES, BUT THAT IS NOT PROCEEDING WITHOUT PROBABLE CAUSE.

BUT 1. WOULDN'T THAT BE SHOWN AT THE PLEADINGS STAGE, AND NOT LIKELY CAUSE THE NOW PLAINTIFF MUCH DAMAGES?

AND 2. IF THE COURT IS RIGHT, WHY WOULDN'T THAT BE FOUND TRUE AT THE SUBSEQUENT WRONGFUL CIVIL PROCEEDINGS TRIAL?

COURT EXPRESSES FEARS ABOUT THE RULE THAT THE LACK OF PROBABLE CAUSE AFFORDS THE PLAINTIFF AN INFERENCE THAT THE DEFENDANT ACTED OUT OF MALICE. COURT SAYS THAT PRESENTS PROBLEMS FOR THE ATTORNEY AND HER/HIS ROLE AS AN ADVOCATE.

BUT IT'S ONLY A PERMISSIBLE INFERENCE, NOT A CONCLUSIVE PRESUMPTION. SO WHY WOULD ATTORNEY HAVE ANYTHING TO FEAR?

WHAT ABOUT THE CLAIM, BOTTOM OF 1008 AND TOP OF 1009, THAT EVEN IF THE CLIENT IS ACTING TO HARASS OR INJURE, AND THE ATTORNEY PERSONALLY DOUBTS THE ULTIMATE SUCCESS OF THE LAWSUIT, THE ATTORNEY SHOULD NOT HAVE TO FEAR RESPONSIBILITY?

P. 1010, NOTE 5. IS RULE 11, AND THE STATE'S EQUIVALENT, A SATISFACTORY ALTERNATIVE?

NOTE 6 FOR OTHER ATTEMPTS, MOSTLY BY DOCTORS, TO GET AT ATTORNEYS.

January 17, 2007January 17, 2007