Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Malicious Prosecution Advice of Counsel. For more information on Malicious Prosecution see the pages on Wikipedia. 

Malicious Prosecution Advice of Counsel-Cases

2010 O’Connor v. Tice, 281 Va. 1, 704 S.E.2d 572.
In this malicious prosecution action primary issue is whether or not probable cause existed for the criminal prosecution. Jury returned a verdict adverse to the defendant. Defendant seems to raise advice of counsel defense. That defense is not applicable in this instance. If the defense were applicable, then the defendant would have to show that there had been a full disclosure of all material facts to the attorney.

1982 Chipouras v. AJ & L Corp., 223 Va. 511, 290 S.E.2d 859.
Advice of counsel was not defense where it was hypothetical and contingent upon future events. To establish this defense defendant must prove: (1) sought advice of reputable counsel to be informed of law; (2) full, correct, and honest, disclosure of facts; and (3) in good faith followed counsel’s advice. This is a complete defense even if advice incorrect. Generally this defense presents a jury question.

1978 Pallas v. Zaharopoulos, 219 Va. 751, 250 S.E.2d 357.
When defendant, in initiating prosecution, acts in good faith upon advice of reputable counsel and after full disclosure of all material facts, he has probable cause to support his action.

1978 Bill Edwards Oldsmobile, Inc. v. Carey, 219 Va. 90, 244 S.E.2d 767.
When defendant has acted in good faith upon advice of reputable counsel and after full disclosure of facts, probable cause is established. But jury, having been instructed on issue, accepted evidence favorable to plaintiff, and in effect, found by its verdict that defendant Edwards, failed to make full disclosure of all material facts to counsel.

1977 Noell v. Angle, 217 Va. 656, 231 S.E.2d 330.
Advice of counsel may be shield against suit for malicious prosecution if defendant proves: (1) that he sought counsel with honest purpose of being informed as to law; (2) that he made full, correct and honest disclosure to counsel of all material facts in his knowledge or which should have been within his knowledge had he made reasonably careful investigation; and (3) that he was in good faith guided by advice of counsel. Question for jury usually.

1976 Bain v. Phillips, 217 Va. 387, 228 S.E.2d 576.
Malicious Prosecution Advice of Counsel.Defendant who acts in good faith upon advice of reputable counsel after full disclosure of facts, has complete defense to action for malicious prosecution.

1961 Spitzer v. Clatterbuck, 202 Va. 1001, 121 S.E.2d 466.
Malicious prosecution advice of counsel. Advice sought with honest purpose of being informed as to law and procured upon full, correct disclosure of all material facts within knowledge of party seeking advice, constitutes complete defense to malicious prosecution.