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3.13-9 Defense of Good Faith Reliance Upon Advice of
Counsel
Revised to January 1, 2008
Under our law, a defendant in a
vexatious suit action has a complete defense to that action if (he/she) can
prove by a fair preponderance of the evidence that (he/she) instituted the
underlying civil (action/proceeding) against the plaintiff in good-faith
reliance upon the advice of legal counsel, given to (him/her) after (he/she)
has made a full and fair statement to such counsel of all facts (he/she)
then knew or should have known concerning the basis for the underlying
action. The fact that counsel's advice was unsound or erroneous will not
affect the result.
This defense is designed to protect the interests of common citizens who,
unschooled in the law, would otherwise be forced to put themselves at great
financial risk every time they resorted to the courts to assert their legal
rights.
Consistent with this purpose, the
defense has five essential elements which the defendant, <name of
defendant>, must prove by a fair preponderance of the evidence if
(he/she) is to prevail upon it in this case:
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That (he/she) consulted with
legal counsel about (his/her) decision to commence and prosecute the
underlying civil (action/proceeding).
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That (his/her) consultation
with legal counsel was based upon a full and fair disclosure by (him/her) of
all facts (he/she) then knew or should have known concerning the basis for
the underlying (action/proceeding). No person can justifiably rely upon
advice that (he/she) knows or should know to be untrustworthy due to
(his/her) own failure to disclose relevant information to the person giving
the advice.
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That the lawyer to whom
(he/she) turned for advice was one from whom (he/she) could reasonably have
expected to receive an accurate, impartial opinion as to the viability of
the underlying (action/proceeding) against <name of plaintiff>.Thus, although all lawyers are
officers of the court, who are bound by their oaths "not knowingly [to]
maintain or assist in maintaining any cause of action that is false or
unlawful," the
law recognizes that they too are people whose judgment may sometimes be
clouded by their personal allegiances, sympathies and prejudices. Where,
then, a person claims that (he/she) has relied upon the advice of counsel
for (his/her) decision to commence and prosecute an action or proceeding
against another person, (he/she) must show that (his/her) counsel was one
(he/she) could fairly have presumed to be unbiased and unprejudiced against
that other person
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That, having sought such
advice, (he/she) relied upon it. If (he/she) did not, then of course
(he/she) has no defense even if counsel was consulted.
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That (his/her) reliance on
counsel's advice was made in good faith.
As used in the defense of
good-faith reliance upon the advice of counsel, good faith is the genuine
belief that one's underlying (action/proceeding) was fully justified, both
in law and in fact.
<At this point, briefly
summarize the claims of the defendant and the countering positions of the
plaintiff on each contested element of the special defense. Be certain to
emphasize, in so doing, that the defendant has the sole burden of proof with
respect to each such essential element.>
If, at the end of your
deliberations, you unanimously find that <name of defendant> has
proved each essential element of this defense by a fair preponderance of the
evidence, then you must return a defendant's verdict on the plaintiff's
claim of vexatious suit.
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Authority
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