HomeMy WebLinkAbout0061 practice action against Sullivan. As the Florida SupreMe Court {
stated in Goldstein v. Sabella, 33 So.3d 91~, 911 (Fla. 195G):
Probable cause is defined as "a reasonable
ground of suspicion, supported by circum-
stances sufficiently stronc3 in themselves
to warrant a cautious man in the belief that ~
the person accused is guilty of the oFfense j
with which he is char7ecl." Dunnavant v.
State, Fla., 46 So.2d 371, 3~ This, as
_ w~e~l as other acceptable definitions of the
term, indicates that one need not be certain
of the outcome of a criminal or civil pro-
ceeding to have probable cause for institut-
ing such an action.
Florida courts have not specifically addressed the issue
of probable cause in the context of a malicious prosecution action
against an attorney by his client's„adversary. Nevertheless, we
believe that the following statement on the subject from :Morton
v. Hines, 49 Cal.App.3rd 917, 123 Ca1.Rptr. 237, 242 (1975), is
in accord evith general Florida law on t:~e issue of probable cause:
It is the attorney's reasonable. and honest
elief that his client has a tenable claim
that is the attorney's probable cause for
representation (citations and not the
attorney's conviction that his client must
prevail. The attorney is not an insurer
to his client's adversary that his client
will win in litigation. Rather, he has a
duty "to rearesent his client zealously...
[seeking] any lawful objective through
~ legally perr.~issible means...[in presenting]
for adjudication any lacoful claim, issue or_
defense." [A.B.A. Code of Professional
Responsibility, EC 7-i, DR 7-101(?) (1) ,
I discussed in 1 nlitkin, Cal. procedure (2d
ed.) Attorneys,.§239.] So long as the
attorney does not abuse that duty by prose-
cuting a claim which a reasonable lawyer
would not regard as tenable or by unreasonably
neglecting to investigate the facts and law
in making his determination to proceed,
his client's adversary has no right to
assert malicious prosecution against the
attorney if the lawyer's efforts prove
unsuccessful. (Emphasis in original).
The existence or lack of probable cause is a pure
question of law for the court to determine under the facts and.
circu:,istances of a particular case. The resolution of disputed
issues of fact is a question to be submitted to the jury. City
~
of Pensacola v. Owens,-369 So.2d 328 (Fla. 1979). In any action
[
r
for malicious prosecution,-the plaintiff is put to the difficult
task o` proving a negative, i.e., the lack of probable cause.
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