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§ 25.: Advice of counsel, how far a defense.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Advice of counsel, how far a defense.—
It is remarkable with what uncertainty the books speak of the manner in which the advice of counsel constitutes a defense to the action for malicious prosecution. Some of the cases hold that it is proof of probable cause;1 some maintain that it disproves malice, in most cases imposing no limitation upon its scope,2 while others, and it is believed the majority of cases, refer to it as establishing both the absence of malice and the presence of a probable cause.3 If the position of these courts is correct, which hold that the advice of counsel establishes the existence of probable cause, then the advice of counsel will constitute an absolute bar to all actions for malicious prosecution, whenever there has been a full and fair disclosure of all the facts within the knowledge of the prosecutor; and the proof of actual malice as the cause of the prosecution will not render him liable, not even where the procurement of professional opinion was to furnish a cloak for his malice, or as a matter of precaution, to learn whether it was safe to commence proceedings. But probable cause does not rest upon the sincerity of the prosecutor’s belief, nor upon its reasonableness, as shown by facts which are calculated to influence his judgment peculiarly, and not the judgment of others. It must be established by facts which are likely to induce any reasonable man to believe that the accused is guilty. If probable cause depends upon the honest reasonable belief of the prosecutor in the guilt of the accused, it is certainly based upon reasonable grounds, if his legal adviser tells him that he has a good cause of action. But his belief does not enter into the determination of the question of probable cause. Although his honest belief in the guilt of the accused is necessary to shield him from a judgment for malicious prosecution, it is not because such belief is necessary to establish probable cause, but because its absence proves that the prosecution was instituted for the gratification of his malice. The opinion of counsel can not supplant the judgment of the court as to what is probable cause, and such would be the effect of the rule, that the advice of counsel establishes probable cause. As Mr. Justice Story said: “What constitutes a probable cause of action is, when the facts are given, matter of law upon which the court is to decide; and it can not be proper to introduce certificates of counsel to establish what the law is.”1
The better opinion, therefore, is that the advice of counsel only furnishes evidence of his good motives, in rebuttal to the inference of malice from want of probable cause. It does not constitute a conclusive presumption of good faith on the part of the prosecutor. If, therefore, there are facts, which establish the existence of malice, and show that the procurement of professional opinion was to cloak his malice, or as a matter of precaution to learn whether it was safe to commence proceedings, the defense will not prevail, and the prosecutor will, notwithstanding, be held liable.1
See Olmstead v. Partridge, 16 Gray, 383; Besson v. Southard, 10 N. Y. 237; Laughlin v. Clawson, 27 Pa. St. 330; Fisher v. Forrester, 33 Pa. St. 501; Ross v. Innis, 26 Ill. 259; Potter v. Sealey, 8 Cal. 217; Levy v. Brannan, 39 Cal. 485. Mr. Cooley, in his work on Torts, p. 183, says: “A prudent man is, therefore, expected to take such advice (of counsel), and when he does so, and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts.”
Snow v. Allen, 1 Stark. 409; Sommer v. Wilt, 4 Serg. & R. 20; Davenport v. Lynch, 6 Jones L. 545; Stanton v. Hart, 27 Mich. 539; Murphy v. Larson, 77 Ill. 172; Williams v. Van Meter, 8 Mo. 339; Center v. Spring, 2 Clarke, 393; Rover v. Webster, 3 Clarke, 502.
See Soule v. Winslow, 66 Me. 447; Bartlett v. Brown, 6 R. I. 37; Ames v. Rathbun, 55 Barb. 194; Walter v. Sample, 25 Pa. St. 275; Turner v. Walker, 3 G. & J. 380; Gould v. Gardner, 8 La. Ann. 11; Phillips v. Bonham, 16 La. Ann. 387; Lemay v. Williams, 32 Ark. 166; Wood v. Weir, 5 B. Mon. 544; Wicker v. Hotchkiss, 62 Ill. 107; Davie v. Wisher, 72 Ill. 262; Wilkinson v. Arnold, 13 Ind. 45; Bliss v. Wyman, 7 Cal. 257. In the case of Blunt v. Little, 3 Mason, 102, Mr. Justice Story said: “It is certainly going a great way to admit the evidence of any counsel that he advised a suit upon a deliberate examination of the facts, for the purpose of repelling the imputation of malice and establishing probable cause. My opinion, however, is that such evidence is admissible.” So, also, in Walter v. Sample, 25 Pa. St. 275, we find the law stated thus: “Professors of the law are the proper advisers of men in doubtful circumstances, and their advice, when fairly obtained, exempts the party who acts upon it from the imputation of proceeding maliciously and without probable cause.”
Blunt v. Little, 3 Mason, 102.
Burnap v. Albert, Taney, 344; Ames v. Rathbun, 55 Barb. 194; Kimoall v. Bates, 50 Me. 308; Brown v. Randall, 36 Conn. 56; Prough v. Entriken, 11 Pa. St. 81; Fisher v. Forrester, 33 Pa. St. 501; Schmidt v. Weidman, 63 Pa. St. 173; Davenport v. Lynch, 6 Jones L. 545; Glascock v. Bridges, 15 La. Ann. 672; King v. Ward, 77 III. 603; Rover v. Webster, 3 Clarke, 502; Chapman v. Dodd, 10 Minn. 350. In Snow v. Allen, 1 Stark. 409, one of the earliest cases in which the advice of counsel was set up as a defense, Lord Ellenborough inquired: “How can it be contended here that the defendant acted maliciously? He acted ignorantly. * * * He was acting under what he thought was good advice, it was unfortunate that his attorney was misled by Higgin’s Case (Cro. Jac. 320); but unless you can show that the defendant was actuated by some purposed malice, the plaintiff can not recover.” In Sharpe v. Johnstone (59 Mo. 577; s. c. 76 Mo. 660), Judge Hough said (76 Mo. 674): “Although defendants may have communicated to counsel learned in the law, all the facts and circumstances bearing upon the guilt or innocence of the plaintiff, which they knew or by any reasonable diligence could have ascertained, yet if, notwithstanding the advice of counsel, they believed that the prosecution would fail, and they were actuated in commencing said prosecution, not simply by angry passions or hostile feelings, but by a desire to injure and wrong the plaintiff, then most certainly they could not be said to have consulted counsel in good faith, and the jury would have been warranted in finding that the prosecution was malicious.” See the annotation of the author to Sharpe v. Johnstone, in 21 Am. Law. Reg. (n. s.) 582