Friedman v. Dozorc , 412 Mich. 1 ( 1981 )

Levin, J.

The plaintiff is a physician who, after successfully defending in a medical malpractice action, brought this action against the attorneys who had represented the plaintiffs in the former action. Dr. Friedman sought under a number of theories to recover damages for being compelled to defend against an allegedly groundless medical malpractice action. The trial court granted the defendants’ motions for summary and accelerated judgment.

The Court of Appeals affirmed in part and reversed in part. We granted leave to appeal to consider what remedies may be available to a physician who brings such a "countersuit”.

We hold that:

(1) The plaintiff has failed to state an actionable claim on a theory of negligence because an attorney owes no duty of care to an adverse party in litigation;

(2) The plaintiff has failed to state an actionable claim on a theory of abuse of process because there is no allegation that defendants committed an irregular act in the use of the process issued in the prior case;

(3) The plaintiff has failed to state an actionable claim on a theory of malicious prosecution because his complaint did not allege interference with his person or property sufficient to constitute special injury under Michigan law.

We affirm the decision of the Court of Appeals dismissing plaintiffs negligence and abuse of process claims, and reverse its decision to remand plaintiffs malicious prosecution claim to the trial court for further proceedings.

I

Leona Serafín entered Outer Drive Hospital in May, 1970, for treatment of gynecological problems. A dilatation and curettage was performed by her physician, Dr. Harold Krevsky. While in the hospital, Mrs. Serafín was referred to the present plaintiff, Dr. Friedman, for urological consultation. Dr. Friedman recommended surgical removal of a kidney stone which was too large to pass, and the operation was performed on May 20, 1970. During the surgery, the patient began to ooze blood uncontrollably. Although other physicians were consulted, Mrs. Serafin’s condition continued to worsen and she died five days after the surgery. An autopsy was performed the next day; the report identified the cause of death as, thrombotic thrombocytopenic purpura, a rare and uniformly fatal blood disease, the cause and cure of which are unknown.

On January 11, 1972, attorneys Dozorc and Golden, the defendants in this action, filed a malpractice action on behalf of Anthony Serafín, Jr., for himself and as administrator of the estate of Leona Serafín, against Peoples Community Hospital Authority, Outer Drive Hospital, Dr. Krevsky and Dr. Friedman, as well as another physician who was dismissed as a defendant before trial. In December, 1974, the case went to trial in Wayne Circuit Court. No expert testimony tending to show that any of the defendants had breached accepted professional standards in making the decision to perform the elective surgery or in the manner of its performance was presented as part of the plaintiffs case. The judge entered a directed verdict of no cause of action in favor of Dr. Friedman and the other defendants at the close of the plaintiffs proofs. The judge subsequently denied a motion for costs brought by codefendant Peoples Community Hospital Authority, pursuant to GCR 1963, 111.6. The Court of Appeals affirmed¹ and this Court denied leave to appeal.²

Dr. Friedman commenced the present action on March 17, 1976 in Oakland Circuit Court. The following excerpt from his complaint summarizes his theories of recovery and the injuries he allegedly sustained as a result of the initiation and prosecution of the malpractice action:

"13. That as a direct and proximate result of the negligence, malicious prosecution and abuse of process of these defendants, the plaintiff, Seymour Friedman, M.D., has endured grievous damages, including, but not limited to, the following: the cost of defending the aforesaid cause and the appeal, an increase in his annual malpractice insurance premiums for so long as he practices medicine, the loss of two young associates from his office who could no longer afford to pay the increased malpractice insurance premiums thereby requiring him to work excessive hours without relief, damages to his reputation as a physician and surgeon, embarrassment and continued mental anguish.”

The defendants moved for summary judgment under GCR 1963, 117.2, subds (1) and (3), and for accelerated judgment under GCR 1963, 116. The judge granted both motions in November, 1976, concluding that (1) plaintiff had failed to state a cause of action for negligence because there was "no relationship other than that of adversaries” between the defendants and plaintiff and hence there was "no duty owing”; and (2) the refusal of the trial judge in the prior action to find that the claims advanced by the defendants on behalf of their client were unreasonable and should render them responsible under GCR 1963, 111.6 for litigation expenses of their opponents established that the prior action was brought with probable cause and therefore precluded a subsequent action for malicious prosecution or abuse of process.

The Court of Appeals affirmed the dismissal insofar as it was based on failure to state a claim on the theories of negligence and abuse of process.³ However, it reversed the dismissal of the cause of action sounding in malicious prosecution and remanded this cause to the trial court, declaring that an adverse ruling on a defendant’s motion under GCR 111.6 did not bar a subsequent malicious prosecution action and that the facts surrounding the filing and continuation of the prior action were in dispute.

This Court granted leave to appeal on both the plaintiff’s application from that portion of the Court of Appeals decision affirming the dismissal of the causes of action sounding in negligence and abuse of process and on the defendants’ application to cross-appeal from that portion of the decision reversing the dismissal of the cause of action for malicious prosecution.⁴

II

A

Plaintiff and amici in support urge this Court to hold that an attorney owes a present or prospective adverse party a duty of care, breach of which will give rise to a cause of action for negligence. We agree with the circuit judge and the Court of Appeals that an attorney owes no actionable duty to an adverse party.

Plaintiff and amici argue that an attorney who initiates a civil action owes a duty to his client’s adversary and all other foreseeable third parties who may be affected by such an action to conduct a reasonable investigation and re-examination of the facts and law so that the attorney will have an adequate basis for a good-faith belief that the client has a tenable claim.⁵ Plaintiff contends that this duty is created by the Code of Professional Responsibility and by the Michigan General Court Rules.⁶

Plaintiff further argues that an attorney’s separate duty under the Code of Professional Responsibility to zealously represent a client is limited by the requirement that the attorney perform within the bounds of the law.⁷ Acting within the bounds of the law is said to encompass refraining from asserting frivolous claims; this charge upon the profession imposes upon counsel a duty to the public, the courts and the adverse party to conduct a reasonable investigation. Plaintiff contends that since the duty to investigate already arises from the attorney-client relationship under the code and court rules, recognition of a cause of action for negligence will impose no new obligation on the attorney.

Defendants counter that an attorney cannot be liable to third parties for acts that result from client representation in the absence of fraud or collusion. An attorney’s only actionable legal duty is owed to his or hér client. An attorney cannot owe a duty to the client’s legal opponent because of the very duty that is owed to the client. An attorney owing one duty to a client and another duty to the client’s adversary, each of whom have adverse interests, would be faced with an irreconcilable conflict of interest.

B

In a negligence action the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides after assessing the competing policy considerations for and against recognizing the asserted duty.⁸

Dean Prosser has said that " 'duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff” and concerns "the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other”.⁹ Only if the law recognizes a duty to act with due care arising from the relationship of the parties does it subject the defendant to liability for negligent conduct.

Assuming that an attorney has an obligation to his client to conduct a reasonable investigation prior to bringing an action, that obligation is not the functional equivalent of a duty of care owed to the client’s adversary. We decline to so transform the attorney’s obligation because we view such a duty as inconsistent with basic precepts of the adversary system.

The duties, professional and actionable, owed to the client by the attorney acting as advocate and adviser are broader than the obligation of reasonable investigation. Those duties concern decisions which the attorney makes on behalf of, and often in consultation with, the client, regarding the manner of proceeding with the client’s cause. A decision to proceed with a future course of action that involves litigation will necessarily adversely affect a legal opponent. If an attorney were held to owe a duty of due care to both the client and the client’s adversary, the obligation owing to the adversary would extend beyond undertaking an investigation and would permeate all facets of the litigation. The attorney’s decision-making and future conduct on behalf of both parties would be shaped by the attorney’s obligation to exercise due care as to both parties. Under such a rule an attorney is likely to be faced with a situation in which it would be in the client’s best interest to proceed in one fashion and in the adversary’s best interest to proceed contrariwise. However he chooses to proceed, the attorney could be accused of failing to exercise due care for the benefit of one of the parties.

In Parnell v Smart, 66 Cal App 3d 833, 837-838; 136 Cal Rptr 246, 248 (1977), a panel of the California Court of Appeals, in refusing to recognize an attorney’s duty to his client’s adversary, expressed this concern as follows:

"The distinguishing feature of this case is that the defendants occupy the position of counselor to the adverse party (Farmers) in an' adverse proceeding instituted by the plaintiff. Defendants were directly responsible to their client, Farmers, and were under a duty to represent and protect their client’s interest against the claim being made by plaintiff. In this role they were duty bound to challenge, minimize or, if possible, to defeat the claim being made. Under these circumstances, it is unreasonable to conceive that defendants owed some sort of legal duty to plaintiff.” (Emphasis in original.)

In short, creation of a duty in favor of an adversary of the attorney’s client would create an unacceptable conflict of interest¹⁰ which would seriously hamper an attorney’s effectiveness as counsel for his client.¹¹ Not only would the adversary’s interests interfere with the client’s interests, the attorney’s justifiable concern with being sued for negligence would detrimentally interfere with the attorney-client relationship. As the California Supreme Court observed in Goodman v Kennedy, 18 Cal 3d 335, 344; 556 P2d 737, 743; 134 Cal Rptr 375 (1976):

"The attorney’s preoccupation or concern with the possibility of claims based on mere negligence (as distinct from fraud or malice) by any with whom his client might deal 'would prevent him from devoting his entire energies to his client’s interests’ (Anderson v Eaton, 211 Cal 113, 116; 293 P 788, 790 [1930]). The result would be both 'an undue burden on the profession’ (Lucas v Hamm, 56 Cal 2d 583, 589 [15 Cal Rptr 821, 824; 364 P2d 685, 688 (1961)]) and a diminution in the quality of the legal services received by the client.” (Footnote omitted.)

In Tappen v Ager, 599 F2d 376, 379 (CA 10, 1979), a physician’s countersuit against an attorney, the United States Court of Appeals for the Tenth Circuit refused to find a duty owing to the attorney’s opponent in litigation because such a duty would be inconsistent with the adversarial relationship of the parties:

"[T]he negligent tort arises in a narrow context. It requires two people to be in a relationship whereby one person owed a duty of prudent conduct to the other. The adversary nature of the lawsuit is strongly at odds with this concept. The lawyer’s duty of care is to his client and to the court.”

We agree and conclude that the public policy of maintaining a vigorous adversary system outweighs the asserted advantages of finding a duty of due care to an attorney’s legal opponent.

Recognition of an attorney’s duty to an adverse party would, contrary to the assertions of plaintiff and amici, impose additional burdens on the attorney. The conflict of interest which would result cannot be resolved, as plaintiff contends, simply by allowing the attorney to resolve all doubts in favor of the client, for the existence or reasonableness of the doubts might themselves become jury questions which would defy principled resolution.

Plaintiff argues that concern for the chilling effect on free access to the courts which might result from declaring the existence of an attorney’s duty in favor of an adverse party is misplaced. Instead, plaintiff urges that recognition of a cause of action in negligence would facilitate free access to the courts. Plaintiff asserts that the historical check on free access to the courts through independent assessment of the case by the attorney has broken down. Instead of acting as an effective screen against groundless suits, the attorney has become a mere conduit for such suits, particularly in medical malpractice actions where the attorney acquires a contingent fee interest in the outcome of the litigation. Recognition of a cause of action for negligence in such cases would, we are told, encourage attorneys to resume this screening function and thereby promote free access to the courts for those with well-founded claims.

Defendants counter that recognition of a duty owing from an attorney to his client’s adversary would inhibit free access to the courts. An attorney faced with the risk of being held liable in negligence to the adverse party will decline close cases and will be unduly inhibited in the free use of the courts on behalf of his client.

We acknowledge that our ability to predict the effect on court dockets of recognition of a cause of action for negligence is limited. There is, however, a public policy of encouraging free access to the courts. Because we are of the opinion that recognition of a cause of action for negligence in favor of a client’s adversary might unduly inhibit attorneys from bringing close cases or advancing innovative theories, or taking action against defendants who can be expected to retaliate, we decline to recognize a duty of due care to the adverse party. We reiterate what this Court said in State Bar Grievance Administrator v Corace, 390 Mich 419, 434-435; 213 NW2d 124 (1973):

"[0]ur adversary system 'intends, and expects, lawyers to probe the outer limits of the bounds of the law, ever searching for a more efficacious remedy, or a more successful defense’.”

We agree with those courts in other jurisdictions which have relied on the policy of encouraging free access to the courts as a reason for declining to recognize a negligence cause of action in physician countersuits.¹² No appellate court has yet approved such a cause of action.

We briefly address, for the sake of completeness, the other arguments advanced by plaintiff and amici.

Plaintiff and amici contend that a greater degree of accountability should be imposed upon the legal profession to restore public confidence in the bar, and that privity of contract no longer shields a professional from liability to foreseeable third parties.¹³ Our decision today is not, however, based on the doctrine of privity of contract but on public policy considerations respecting the attorney’s role in the adversary system and the importance of preserving free access to the courts.

Plaintiff and amici also contend that attorneys ought to be subject to liability for negligence to all foreseeable third parties, because the scope of duty is determined by foreseeability of harm, which is clear in the case of an intended adversary, and not by such factors as reliance or intended benefit.

We are of the opinion, however, that reliance is an appropriate factor to be considered in deciding whether a duty is owed to another by a professional.¹⁴ The absence of reliance distinguishes a third party’s relationship with a member of the legal profession who represents that party’s adversary from a third party’s relationship with a member of another profession whose negligent conduct may affect him.¹⁵

An occasional decision has found an attorney liable to third parties absent reliance. The California Supreme Court held an attorney liable to the intended beneficiary under a will for negligently drafting the will.¹⁶

Defendants contend that an attorney’s liability for negligence to third parties should be limited to negligent will drafting and negligent title examination. We intimate no view regarding an attorney’s liability for negligence to third parties who are not adversaries in litigation. Those factual situations are not before us. It is sufficient to note that in the present case there can be neither reliance by the plaintiff nor benefit intended by the defendants or their client because the relationship of the parties is adversarial.¹⁷

In sum, the demands of the adversary system distinguish the legal profession from other professions whose members have been held liable to third parties for negligence, and the present case from those in which lawyers have been held liable to third parties.

Ill

To recover upon a theory of abuse of process, a plaintiff must plead and prove (1) an ulterior purpose and (2) an act in the use of process which is improper in the regular prosecution of the proceeding. Spear v Pendill, 164 Mich 620, 623; 130 NW 343 (1911).¹⁸

Plaintiff contends he has pleaded that defendants’ ulterior purpose in filing the former malpractice action was to coerce payments of large sums of money from plaintiff for defendants’ financial gain by means of their contingent fee arrangement with the former plaintiff. In addition, plaintiff alleges that irregular use of process was shown by defendants’ filing of the complaint without adequate investigation.

Defendants counter that plaintiff’s pleadings are deficient in failing to allege an act by the defendants beyond mere initiation of a lawsuit and an ulterior purpose other than settlement of a lawsuit.

We need not decide whether plaintiffs pleadings sufficiently allege that the defendants had an ulterior purpose in causing process to issue, since it is clear that the plaintiff has failed to allege that defendants committed some irregular act in the use of process. The only act in the use of process that plaintiff alleges is the issuance of a summons and complaint in the former malpractice action. However, a summons and complaint are properly employed when used to institute a civil action, and thus plaintiff has failed to satisfy the second element required in Spear, supra, 623, where the Court observed " '[t]his action for abuse of process lies for the improper use of process after it has been issued, not for maliciously causing it to issue’ ”.

We note that other courts that have addressed the question whether abuse of process is a possible theory of recovery in the context of a medical malpractice countersuit have found that mere commencement of an action for malpractice is not an improper use of process. Martin v Trevino, 578 SW2d 763 (Tex Civ App, 1978); Hoppenstein v Zemek, 62 AD2d 979; 403 NYS2d 542 (1978); Lyddon v Shaw, 56 Ill App 3d 815; 372 NE2d 685 (1978).

IV

Plaintiff relies upon the same allegations respecting defendants’ conduct and their failure to meet professional standards which assertedly constitute negligence in contending that he has pled a cause of action for malicious prosecution. He argues that the question of probable cause in a malicious prosecution action against the attorney for an opposing party turns on whether the attorney fulfilled his duty to reasonably investigate the facts and law before initiating and continuing a lawsuit. If the attorney’s investigation discloses that the claim is not tenable, then it is his obligation to discontinue the action.

Defendants respond that Michigan is among those jurisdictions that have not abandoned the special injury requirement in actions for the malicious prosecution of civil proceedings. They urge, in addition, that this Court adopt a rule that a successful motion pursuant to GCR 1963, 111.6 in the former lawsuit is a necessary condition precedent to institution of a subsequent malicious prosecution action by the former defendant.

We agree with defendants that under Michigan law special injury remains an essential element of the tort cause of action for malicious prosecution of civil proceedings. Although the circuit judge did not rest decision on the plaintiffs failure to plead special injury, summary judgment under GCR 1963, 117.2(1) for failure to state a claim could be appropriately entered on that basis; the factual disputes asserted by plaintiff are immaterial.¹⁹

A

The recognition of an action for malicious prosecution developed as an adjunct to the English practice of awarding costs to the prevailing party²⁰ in certain aggravated cases where the costs remedy was thought to be inadequate and the defendant had suffered damages beyond the expense and travail normally incident to defending a lawsuit. In 1698 three categories of damage which would support an action for malicious prosecution were identified: injury to one’s fame (as by a scandalous allegation), injury to one’s person or liberty, and injury to one’s property.²¹ To this day the English courts do not recognize actions for malicious prosecution of either criminal or civil proceedings unless one of these types of injury, as narrowly defined by the cases, is present.²²

A substantial number of American jurisdictions today follow some form of "English rule” to the effect that "in the absence of an arrest, seizure, or special damage, the successful civil defendant has no remedy, despite the fact that his antagonist proceeded against him maliciously and without probable cause”.²³ A larger number of jurisdictions, some say a majority, follow an "American rule” permitting actions for malicious prosecution of civil proceedings without requiring the plaintiff to show special injury.²⁴

B

The plaintiffs complaint does not allege special injury. We are satisfied that Michigan has not significantly departed from the English rule and we decline to do so today.

This Court heretofore has neither recognized the unrestricted availability of a tort cause of action, analogous to malicious prosecution, for the wrongful initiation or continuation of civil proceedings, nor abrogated the traditional requirement that a plaintiff alleging wrongful institution of civil proceedings have suffered special injury in the nature of an interference with person or property. Examination of the Court’s decisions reveals, rather, that despite occasional dictum the existence of an action for malicious prosecution of civil proceedings has been recognized only in circumstances where, consistent with the English rule, an interference with the plaintiff’s person or property occurred.

Brand v Hinchman, 68 Mich 590; 36 NW 664 (1888), is the first decision pf this Court concerning an action for malicious prosecution of a civil, rather than criminal, proceeding. Hinchman had obtained a writ of attachment against Brand and his business partner McCullough based upon an affidavit alleging that Brand and McCullough were indebted to Hinchman and were about to assign, dispose of, or conceal their property with intent to defraud their creditors. Two deputies took the writ to Brand’s store and displayed it to him. Brand asked and was granted time to see Hinchman or Hinchman’s attorneys. The officers remained at the store for at least half an hour until a clerk employed by Hinchman’s attorneys arrived to tell them the claim was settled. The officers departed without having formally served the writ or levied upon property of the business.

When Brand and McCullough subsequently obtained a judgment against Hinchman for maliciously obtaining the writ of attachment, Hinchman contended that the action for malicious prosecution would not lie because there had been no arrest of the plaintiffs’ persons or seizure of their property. The Court responded:

"While in this case there was no service of the writ, there was at least a technical taking and possession of the property. The officer went in the store to make the levy, and did not go out of it . until ordered to by the agent of Hinchman & Sons. He testifies that he should have prevented any one from removing any goods from the building, and he certainly had possession enough to have done so.”²⁵

The Court’s finding that there had been a technical taking and possession of the plaintiffs’ property was sufficient to answer Hinchman’s argument and decide the case. Justice Morse, the author of the opinion, went on, however, to say:

"But, whether he had such possession or not, I am fully satisfied, from a consultation of the authorities, that the action is maintainable without any arrest or seizure of property.”²⁶ (Emphasis supplied.)

Reviewing a number of sources, he acknowledged that the English authorities and the majority of treatise writers substantiated the rule on which Hinchman relied but identified a growing trend among the American cases toward allowing actions for malicious prosecution of a civil action absent an arrest or seizure of property, "especially the swearing out of a false attachment without probable cause”.²⁷ Justice Morse concluded:

"The common law declares that for every injury there is a remedy. Especially is this so where the injury is malicious. If a man is injured in his credit and reputation, and his business lessened or broken up, it can make no difference, in his right to recover for such injury, that his person or property has not been manually seized or disturbed. But this is my individual opinion, the other members of the Court not deeming it necessary in this case to express any opinion upon this matter. ”²⁸ (Emphasis supplied.)

Brand stands only for the proposition that the facts of that case demonstrated a technical or constructive seizure of property sufficient to support an action for maliciously obtaining an attachment; if a majority of the Court had been prepared to say that a seizure of property was not essential to the cause of action, it would have been unnecessary for the Court to address that point.

Nor is Antcliff v June, 81 Mich 477; 45 NW 1019 (1890), authority for recognizing an action for malicious prosecution of a civil proceeding absent special injury to the defendant in the prior action.²⁹ Justice Morse, who also wrote this opinion, recalled and reiterated the views he had expressed in Brand³⁰ but again revealed his discussion to be dictum by concluding:

"But it is not necessary to determine whether the ñrst count was a good one, in an action for malicious prosecution. It sets out fully a conspiracy between the defendants, June and Crowell, to defraud the plaintiff, and that he was defrauded out of the money paid upon this void judgment. It therefore clearly sets out an actionable wrong, — one that can be recovered for in an action upon the case, — and it is immaterial what it is called.”³¹ (Emphasis supplied.)

Thus, Antcliff stands not for the proposition that an action for malicious prosecution of civil proceedings will lie absent injury to the plaintiffs person or property but for the conclusion that the declaration stated an action on the case for fraud.

In the foregoing cases and others subsequently decided by this Court,³² the plaintiff suffered some special injury equivalent to a seizure of property as a result of the defendant’s institution of civil proceedings. No decision of this Court holds that an action for malicious prosecution of civil proceedings can be maintained absent special injury, whatever the precise boundaries of that concept.

Nor had the Court of Appeals, prior to its decision in this case, declared other than in dictum that an action for the malicious prosecution of a civil action could be maintained without regard to whether the plaintiff had incurred special injury.³³

C

Since this Court has not heretofore declared that an action for malicious prosecution of civil proceedings may be maintained in the absence of special injury, it remains to be decided whether we should so hold today. We are persuaded that the special injury requirement should be retained to limit the circumstances in which an action for the malicious prosecution of civil proceedings can be maintained.

Most commentators appear to favor abrogation of the special injury requirement to make the action more available and less difficult to maintain.³⁴ Their counsel should, however, be evaluated skeptically. The lawyer’s remedy for a grievance is a lawsuit, and a law student or tort professor may be particularly predisposed by experience and training to see the preferred remedy for a wrongful tort action as another tort action. In seeking a remedy for the excessive litigiousness of our society, we would do well to cast off the limitations of a perspective which ascribes curative power only to lawsuits.

We turn to a consideration of Dean Prosser’s criticisms of the three reasons commonly advanced by courts for adhering to the English rule. First, to the assertion that the costs awarded to the prevailing party are intended as the exclusive remedy for the damages incurred by virtue of the wrongful litigation, Prosser responds that "in the United States, where the costs are set by statute at trivial amounts, and no attorney’s fees are allowed, there can be no pretense at compensation even for the expenses of the litigation itself’.³⁵ This argument is compelling, but it does not necessarily justify an award of compensation absent the hardship of special injury or dictate that an award of compensation be assessed in a separate lawsuit. Second, to the arguments that an unrestricted tort of wrongful civil proceedings will deter honest litigants and that an innocent party must bear the costs of litigation as the price of a system which permits free access to the courts, Prosser answers that "there is no policy in favor of vexatious suits known to be groundless, which are a real and often a serious injury”.³⁶ But a tort action is not the only means of deterring groundless litigation, and other devices may be less intimidating to good-faith litigants. Finally, in response to the claim that recognition of the tort action will produce interminable litigation, Prosser argues that the heavy burden of proof which the plaintiff bears in such actions will safeguard bona fide litigants and prevent an endless chain of countersuits. But if few plaintiffs will recover in the subsequent action, one may wonder whether there is any point in recognizing the expanded cause of action. If the subsequent action does not succeed, both parties are left to bear the expenses of two futile lawsuits, and court time has been wasted as well.

Although this case arises upon the plaintiff doctor’s assertions that the defendant attorneys wrongfully prosecuted a medical malpractice action against him, if we were to eliminate the special injury requirement that expansion of the tort of malicious prosecution would not be limited to countersuits against attorneys by aggrieved physicians. An action for malicious prosecution of civil proceedings could be brought by any former defendant — person, firm or corporation, private or pub-lie — in whose favor a prior civil suit terminated, against the former plaintiff or the plaintiff’s attorney or both. In expanding the availability of such an action the Court would not merely provide a remedy for those required to defend groundless medical malpractice actions, but would arm all prevailing defendants with an instrument of retaliation, whether the prior action sounded in tort, contract or an altogether different area of law.

This is strong medicine — too strong for the affliction it is intended to cure. To be sure, successful defense of the former action is no assurance of recovery in a subsequent tort action, but the unrestricted availability of such an action introduces a new strategic weapon into the arsenal of defense litigators, particularly those whose clients can afford to devote extensive resources to prophylactic intimidation.

At present, a plaintiff and his attorney who know that they have less than an airtight case must, in deciding whether to continue the case or in evaluating a settlement offer, consider whether if they proceed to trial they will invest more and recover less or nothing. If the instant plaintiff’s approach is adopted, all plaintiffs and their attorneys henceforth must also weigh the likelihood that if they persevere in the action and receive an unfavorable decision, they will not only take nothing but also be forced to defend an action for malicious prosecution of civil proceedings. Even if the plaintiff and his attorney had abundant cause for bringing and continuing the action and acted without malice, the expense and annoyance foreseeably involved in even a successful defense of the countersuit may induce them to abandon a problematic claim or to settle the case for less than they would otherwise accept. Some will say amen, but this would push the pendulum too far in favor of the defense, more than is necessary to rectify the evil to which this effort is directed.

Because many actions for malicious prosecution of civil proceedings will present questions of fact concerning what measures the former plaintiff and his attorney took, and with what state of mind, the prospect of having the countersuit submitted to a jury capable of returning a large verdict including damages for business loss, injury to reputation and emotional distress will loom large indeed, especially since many parties or attorneys do not have or may be unable to obtain insurance against such liability.

The cost of legal malpractice insurance is bound to increase, assuming coverage against such liability is available. (The currently advertised State Bar group program seems to include such coverage.) Litigators may be excluded from group programs and find that they cannot obtain coverage at reasonable rates. A legal malpractice crisis may arise as serious as the medical malpractice crisis.

Permitting a tort action for wrongful civil proceedings to be maintained absent special injury to the plaintiff could easily generate a surprising number of such actions. Not only doctors, but most defendants, react to a lawsuit with hurt feelings and outrage. They may impute malicious motives to the plaintiff and the opposing attorney and be eager to exact retribution if they prevail. There is no shortage of lawyers who are eager to develop new specialties and would be willing to accept such actions on a contingent fee basis. Some product manufacturers and insurance companies may routinely file countersuits with a view to inhibiting plaintiffs or their attorneys from commencing actions against them or their insureds. The indiscriminate filing of countersuits may lead to actions for wrongfully proceeding with a wrongful civil proceedings action. Embittered litigants whose differences are more emotional than legal will have added opportunities to continue their strife.

The cure for an excess of litigation is not more litigation. Meritorious as well as frivolous claims are likely to be deterred. There are sure to be those who would use the courts and such an expanded tort remedy as a retaliatory or punitive device without regard to the likelihood of recovery or who would seek a means of recovering the actual costs of defending the first action without regard to whether it was truly vexatious.

Other courts have, in the last few years, refused to abandon the special injury requirement. In a 1977 decision arising out of an action brought by physicians who had been sued for medical malpractice by a plaintiff they had not treated, the Oregon Supreme Court rejected an invitation to change the law of that jurisdiction.³⁷ The court suggested that the proposed change was more appropriate for legislative consideration, especially since two recent legislative examinations of the medical malpractice "problem” had followed decisions reaffirming the special injury requirement without resulting in any change in the elements of an action for malicious prosecution of civil proceedings.

In this connection, it is noteworthy that the instant action is a test case brought at about the same time as the Legislature and this Court were called upon to adopt a number of measures to alleviate the medical malpractice crisis. The Legislature could create a special cause of action in favor of physicians without the potential impact on the entire litigation system of a general cause of action for wrongful civil proceedings. No court, although some have been asked to do so, has been persuaded that a principled distinction could be drawn by a court of law on the basis that injury to the reputation of a doctor is a special injury warranting exceptional solicitude not accorded other aggrieved litigants.

In 1978 the District of Columbia Court of Appeals rejected a similar effort by a physician.³⁸ In 1979, the Washington Supreme Court adhered to the special injury requirement, concluding that the limitation "still serves the dual purpose of allowing the honest plaintiff to press his case without threat of suit and of limiting vexatious lawsuits”.³⁹ Recent Illinois⁴⁰ and Rhode Island⁴¹ decisions are in agreement. The list of states adhering to the special injury rule includes a number of other major jurisdictions.⁴²

V

Apart from special injury, elements of a tort action for malicious prosecution of civil proceedings are (1) prior proceedings terminated in favor of the present plaintiff, (2) absence of probable cause for those proceedings, and (3) "malice”, more informatively described by the Restatement as "a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based”.⁴³

The following discussion addresses the chief concern of this case: the conditions under which the attorney for an unsuccessful plaintiff may be held liable.

A

The absence of probable cause in bringing a civil action may not be established merely by showing that the action was successfully defended.⁴⁴ To require an attorney to advance only those claims that will ultimately be successful would place an intolerable burden on the right of access to the courts.

The Court of Appeals adopted, and plaintiff endorses, the standard for determining whether an attorney had probable cause to initiate and continue a lawsuit articulated in Tool Research & Engineering Corp v Henigson, 46 Cal App 3d 675, 683-684; 120 Cal Rptr 291 (1975):

"The attorney is not an insurer to his client’s adversary that his client will win in litigation. Rather, he has a duty 'to represent his client zealously * * * [seeking] any lawful objective through legally permissible means * * * [and presenting] for adjudication any lawful claim, issue, or defense.’ (ABA, Code of Professional Responsibility, EC 7-1, DR 7-101[A][l] * * *.) So long as the attorney does not abuse that duty by prosecuting 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.

"The attorney’s obligation is to represent his client honorably and ethically, and he may, without being guilty of malicious prosecution, vigorously pursue litigation in which he is unsure of whether his client or the client’s adversary is truthful, so long as that issue is genuinely in doubt.”

The Henigson court also said: "An attorney has probable cause to represent a client in litigation when, after a reasonable investigation and industrious search of legal authority, he has an honest belief that his client’s claim is tenable in the forum in which it is to be tried.”

In our view, this standard, while well-intentioned, is inconsistent with the role of the attorney in an adversary system.

Our legal system favors the representation of litigants by counsel.⁴⁵ Yet the foregoing standard appears skewed in favor of non-representation; the lawyer risks being penalized for undertaking to present the client’s claim to a court unless satisfied, after a potentially substantial investment in investigation and research, that the claim is tenable.

A lawyer may be confronted with the choice between allowing the statute of limitation to run upon a claim with which the client has only recently come forward, or promptly filing a lawsuit based on the information in hand. Such dilemmas are particularly likely to arise in connection with medical malpractice claims because a statute provides a six-month limitation period for bringing an action based on a belatedly discovered claim⁴⁶ as an alternative to the normal two-year limitation period for malpractice actions.⁴⁷ Time will not always permit "a reasonable investigation and industrious search of legal authority” before the lawyer must file a complaint to preserve the client’s claim — and thus, perhaps, avoid an action by the client for legal malpractice.

In medical malpractice actions the facts relevant to an informed assessment of the defendant’s liability may not emerge until well into the discovery process. Sometimes the relevant facts are not readily ascertainable. In the instant case, for example, defendants maintain that their efforts to acquire Mrs. Serafin’s medical records were rebuffed until they commenced suit and thereupon became able to invoke established discovery procedures and the implicit power of the court to compel disclosure; it may be the practice of some doctors or hospitals to refuse to release medical records until a lawsuit has been commenced.⁴⁸

Moreover, the Henigson standard suggests rather ominously that every time a lawyer representing, say, a medical malpractice plaintiff encounters a fact adverse to the client’s position or an expert opinion that there was no malpractice, he must immediately question whether to persevere in the action.⁴⁹ An attorney’s evaluation of the client’s case should not be inhibited by the knowledge that perseverance may place the attorney personally at risk; the next fact or the next medical opinion may be the one that makes the case,⁵⁰ and such developments may occur even on the eve of trial.

Indeed, a jury-submissible claim of medical malpractice may sometimes be presented even without specific testimony that the defendant physician violated the applicable standard of care.⁵¹ Thus, a lawyer may proceed in thé good-faith belief that his proofs will establish a prima facie case of medical malpractice without expert testimony, only to find that the court disagrees. Such conduct is not the equivalent of proceeding without probable cause.

Indeed, whether an attorney acted without probable cause in initiating, defending or continuing proceedings on behalf of a client should not normally depend upon the extent of the investigation conducted. The Code of Professional Responsibility does not expressly impose any duty upon a lawyer to conduct an independent investigation of the merits of a client’s claim. DR 7-102(A), upon which plaintiffs in the instant action rely, states only that a lawyer shall not:

"(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

"(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.” (Emphasis supplied.)

DR 7-102(A) and the other professional standards to which plaintiff refers⁵² consistently incorporate a requirement of scienter as to groundlessness or vexatiousness, not a requirement that the lawyer take affirmative measures to verify the factual basis of his client’s position. A lawyer is entitled to accept his client’s version of the facts and to proceed on the assumption that they are true absent compelling evidence to the contrary.⁵³ The only general limitation on the lawyer’s acceptance of employment is found in DR 2-109(A),⁵⁴ the language of which parallels DR 7-102(A). And, although DR 6-101(A)(2) states that a lawyer shall not "[h]andle a legal matter without preparation adequate in the circumstances”, that preparation need not entail verification of the facts related by the client.

Framed as it is in terms of "reasonableness”, the Henigson standard is difficult to reconcile with the lawyer’s obligation to represent his client’s interests zealously.⁵⁵ "Zealous representation” contemplates that the lawyer will go to the limits for his client, representing him loyally, tenaciously and single-mindedly. The question of whether a lawyer "abused that duty” is not a matter of what a hypothetical reasonable practitioner would have done in the same circumstances, but of whether the lawyer’s conduct was beyond the limits of reason or the bounds of the law⁵⁶ although another "reasonable” lawyer, or many such lawyers, might not have acted similarly.

The Restatement’s definition of probable cause provides ample guidance whether damages are sought from a lawyer, his client or both:_

"One who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either

"(a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law, or

"(b) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information.”⁵⁷ (Emphasis supplied.)

As applied to a plaintiffs lawyer, this standard would allow lack of probable cause to be found where the lawyer proceeded with knowledge that the claim had no factual or legal basis, but would impose no obligation to investigate if the lawyer could reasonably believe the facts to be as the client alleged.

B

This Court has said, in opinions addressed to the tort of malicious prosecution, that malice may be inferred from the facts that establish want of probable cause, although the jury is not required to draw that inference.⁵⁸ This rule, developed in cases where damages were sought from a layperson who initiated proceedings,⁵⁹ fails to make sufficient allowance for the lawyer’s role as advocate and should not be applied in determining whether a lawyer acted for an improper purpose.

A client’s total lack of belief that the action he initiates or continues can succeed is persuasive evidence of intent to harass or injure the defendant by bringing the action. But a lawyer who is unaware of such a client’s improper purpose may, despite a personal lack of belief in any possible success of the action, see the client and the claim through to an appropriate conclusion without risking liability. 3 Restatement Torts, 2d, § 674, comment d, states:

"An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see § 675); and even if he has no probable cause and is convinced that his client’s claim is unfoundedhe is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676). An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.” (Emphasis supplied.)

While a client’s decision to proceed with litigation although he knows that the facts are not as alleged, or that a proper application to the facts of existing law (or any modification thereof which can be advanced in good faith) will not support the claim, is indicative of the client’s ulterior, malicious motive, that inference cannot so easily be drawn from conduct of a lawyer who owes his client a duty of representation and is unaware of the client’s improper purpose. The lawyer who "acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim”, albeit with knowledge that the claim is not tenable, should not be subject to liability on the thesis that an inference of an improper purpose may be drawn from the lawyer’s continuing to advance a claim which he knew to be untenable.⁶⁰

The Restatement defines the mental element of the tort of wrongful civil proceedings as "a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based”. A finding of an improper purpose on the part of the unsuccessful attorney must be supported by evidence independent of the evidence establishing that the action was brought without probable cause.⁶¹

We affirm that portion of the Court of Appeals decision which upheld summary judgment in favor of defendants on plaintiffs claims sounding in negligence and abuse of process. With respect to plaintiffs claim for malicious prosecution, we reverse the decision of the Court of Appeals and affirm the trial court’s grant of summary judgment; we do so on the ground that an action for malicious prosecution of a civil action may not be brought absent special injury and the plaintiff failed to plead special injury.

Kavanagh, Williams, and Ryan, JJ., concurred with Levin, J.

1 Serafin v Peoples Community Hospital Authority, 67 Mich App 560; 242 NW2d 438 (1976).

2 397 Mich 880 (1976).

3 Friedman v Dozorc, 83 Mich App 429; 268 NW2d 673 (1978).

4 405 Mich 823 (1979).

5 The heading of the principal section of plaintiffs argument seeking recognition of a cause of action for negligence against an opposing attorney is more specific:

"An attorney who commences a civil action has the affirmative duty and obligation to foreseeable third parties who may be affected by that civil action to conduct a reasonable investigation prior to the commencement of the action and to constantly re-examine the civil action once filed during its continuation as is reasonably necessary, ordinary and appropriate under the circumstances of the particular case to enable him to come to a good faith belief that his client has or continues to have a tenable claim and that the factual matters contained in the complaint are true and such investigation and reexamination must be conducted with the exercise of reasonable and ordinary skill, care, diligence and knowledge ordinarily possessed by attorneys under similar circumstances.”

6 Plaintiffs brief refers to Code of Professional Responsibility and Canons, Canon 1, DR 1-102(A), Canon 6, DR 6-101(A), Canon 7, DR 7-102(A), and various Ethical Considerations associated with Canon 7, especially EC 7-4 and EC 7-10, as well as to GCR 1963, 111.6 and 114.

7 Code of Professional Responsibility and Canons, Canon 7 provides: "A lawyer should represent a client zealously within the bounds of the law”.

DR 7-102 provides in pertinent part:

"(A) In his representation of a client, a lawyer shall not:

"(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

"(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.”

EC 7-4 provides:

"The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail. His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.”

EC 7-10 provides:

“The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.”

8 Moning v Alfono, 400 Mich 425, 436-438; 254 NW2d 759 (1977); Smith v Allendale Mutual Ins Co, 410 Mich 685, 713; 303 NW2d 702 (1981).

9 Prosser, Torts (4th ed), § 53, p 324. Dean Prosser also cautions that " '[d]uty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection”. Id:, pp 325-326.

10 Under a section entitled Conflicts in Litigation, the comments to the Discussion Draft of ABA Model Rules of Professional Conduct, 48 USLW, No. 32, Supplement, p 8 (February 19, 1980), most aptly identify the type of conflict of interest presented under the instant facts:

"Most if not all questions of conflict of interest are questions of degree. As noted above, minor and inevitable conflicts inherent in client-lawyer relationships necessarily must be tolerated. On the other hand, a conflict of interest may be so sharp as to preclude the lawyer from representing a particular client. For example, under no circumstances could a lawyer properly represent both the plaintiff and the defendant in contested litigation, or represent parties to a negotiation whose interests are fundamentally antagonistic to each other. When it is plain that prejudice to the client’s interests is likely to result, the lawyer should not undertake the representation even with the consent of the client. A client’s consent does not legitimate a lawyer’s abuse of professional office.”

11 In Berlin v Nathan, 64 Ill App 3d 940, 952; 381 NE2d 1367, 1376 (1978), which arose from a physician’s countersuit against the original plaintiffs and their attorneys, the court said:

"[W]e believe it would be contrary to public policy for us to hold that an attorney has a duty to an intended defendant not to file a weak or perhaps 'frivolous’ lawsuit since we would be creating an insurmountable conflict of interest between the attorney and the client. The attorney owes a duty to his or her client to present the client’s case vigorously in a manner as favorable to the client as the rules of law and professional ethics demand. (Norton v Hines, 49 Cal App 3d 917; 123 Cal Rptr 237 [1975]).”

12 Weaver v Superior Court of Orange County, 95 Cal App 3d 166; 156 Cal Rptr 745 (1979); Berlin v Nathan, 64 Ill App 3d 940; 381 NE2d 1367 (1978); Lyddon v Shaw, 56 Ill App 3d 815; 372 NE2d 685 (1978); Brody v Ruby, 267 NW2d 902 (Iowa, 1978); Spencer v Burglass, 337 So 2d 596 (La App, 1976); Hill v Willmott, 561 SW2d 331 (Ky App, 1978).

13 In Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), this Court held that an abstracter of title is subject to liability in negligence to foreseeable third parties who rely on the abstract.

14 In finding that a title abstracter may owe a duty to a third party to avoid negligent misrepresentation in an abstract, this Court recognized a duty to persons who had foreseeably relied on the abstract:

"This cause of action arising from breach of the abstracter’s contractual duty runs to those persons an abstracter could reasonably foresee as relying on the accuracy of the abstract put into motion. The particular expert-client relationship accruing to a professional contract to certify the condition of the record of title reposes a peculiar trust in an abstracter which runs not only to the original contracting party.” Williams v Polgar, supra, 22-23.

15 See Bickel v Mackie, 447 F Supp 1376, 1381 (ND Iowa, 1978), aff'd 590 F2d 341 (CA 8, 1978), where the Court declined to find that an attorney owed a duty of due care to a physician who successfully defended a malpractice suit, and said:

"However,- in the present case there is no question of reliance of third parties who are adversaries in judicial proceedings. The attorney owes his primary and paramount duty to his client. The very nature of the adversary process precludes reliance by opposing parties. While it is true that the attorney owes a general duty to the judicial system, it is not the type of duty which translates into liability for negligence to an opposing party where there is no foreseeable reliance by that party on the attorney’s conduct.”

16 Lucas v Hamm, 56 Cal 2d 583; 364 P2d 685; 15 Cal Rptr 821 (1961).

The California courts have reasoned that where an attorney’s relationship with his client was intended to benefit a third party, the third party could recover directly from the attorney for breach of duty where the harm from the breach was also certain and foreseeable. Heyer v Flaig, 70 Cal 2d 223; 449 P2d 161; 74 Cal Rptr 225 (1969).

Although the California courts have been liberal in extending an attorney’s liability to third parties, the California Supreme Court more recently refused to extend an attorney’s duty of care in giving legal advice to a client to third parties with whom the client deals at arm’s length in the absence of a showing that the advice was foresee-ably transmitted to or relied upon by or intended to benefit the third parties. Goodman v Kennedy, supra.

In Norton v Hines, 49 Cal App 3d 917; 123 Cal Rptr 237 (1975), and Weaver v Superior Court of Orange County, 95 Cal App 3d 166; 156 Cal Rptr 745 (1979), a panel of the California Court of Appeals declined to find that an attorney owed a duty to his or her client’s adversary in litigation.

17 The Appellate Court of Illinois observed:

"When a tort action is brought [the attorney] has but one intended beneficiary, his client; the adverse party is certainly not an intended beneficiary of the adverse counsel’s client. Thus, even in states extending the attorney’s responsibility, and liability to intended beneficiaries of the client’s conduct, such as intended legatees under a will, no liability to the adverse party sued by the client has been found absent malicious prosecution.” Berlin v Nathan, 64 Ill App 3d 940, 952-953; 381 NE2d 1367, 1376 (1978).

18 The Restatement Torts, 2d, explains the tort of abuse of process as follows:

"The gravamen of the misconduct for which the liability stated in this section is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. Therefore, it is immaterial that the process was properly issued, that it was obtained in the course of proceedings that were brought with probable cause and for a proper purpose, or even that the proceedings terminated in favor of the person instituting or initiating them. The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed under the rule stated in this section.” 3 Restatement Torts, 2d, § 682, comment a, p 474.

19 Plaintiff contends that it was error for the trial court to grant defendants’ motions for summary and accelerated judgment since the facts relevant to whether defendants had probable cause to initiate and continue the former malpractice action — the extent to which the defendants conducted a reasonable review of medical records and pathology and autopsy reports, and the extent to which they attempted to obtain the opinions of expert witnesses — were in dispute.

20 The early common law required any complainant who lost his suit to pay his opponent wer, a monetary penalty which varied with the complainant’s status. After the Norman conquest, wer gave way to amercement, a more flexible sanction paid to the court. Although every unsuccessful initiator of legal proceedings was subject to amercement, the amount, at least in theory, varied according to the wrongfulness of the complainant’s conduct. Note, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 88 Yale L J 1218, 1221-1223 (1979).

Amercement lost its effectiveness over time as the amounts assessed were subjected to limits and diminished by inflation. Id., 1226, fn 63. Parliament eventually sought to revive a system of internal sanctions through a number of statutes which allowed prevailing defendants—and plaintiffs (see Goodhart, Costs, 38 Yale L J 849, 852-853 [1929])—to recover all or part of their costs of litigation. Id., p 853, and Note, supra, p 1226, fn 64, both citing 23 Hen 8, c 15, § 1 (1531) (allowing costs at the discretion of the court to a prevailing defendant in actions of trespass, case, debt or covenant, detinue, account, and contract, or on any statute); 8 Eliz 1, c 2 (1565) (allowing costs and damages to the defendant where the plaintiff had caused arrest or attachment by invoking summary process and had delayed or discontinued prosecution of the claim on the merits); and 4 Jac 1, c 3 (1607) (allowing the defendant to recover costs whenever the plaintiff might have recovered them had he prevailed).

The Statute of Marlbridge (also Marleberge, Marlborough), 52 Hen 3, c 6 (1267), has been described as a watershed which signaled the replacement of a previously recognized right to bring a subsequent action for false suit with a sweeping system for allowing prevailing defendants in civil cases to recover costs, including attorney fees, in the original action. See, e.g., 52 Am Jur 2d, Malicious Prosecution, § 9, pp 191-192. But other sources state that the asserted pre-statute right of action is "mythical”, Note, supra, p 1225, fn 59, and that the statute "was an isolated instance” of the unsuccessful plaintiff being subject to liability to the defendant as well as amercement. Goodhart, supra, p 853.

21 Savile v Roberts, 1 Ld Raym 374, 378; 91 Eng Rep 1147, 1149-1150 (1698).

22 For discussion of what will constitute the requisite injury, see Quartz Hill Consolidated Gold Mining Co v Eyre, LR 11 QBD 674, 689-693; 52 LJQB(NS) 488 (1883) (opinion of Bowen, L.J.); and Wiffen v Bailey & Romford Urban Dist Council, [1915] 1 KB 600.

23 52 Am Jur 2d, supra, § 10, p 192. The Reporter’s Note at 5 Restatement Torts, 2d, Appendix, § 674, p 438, identifies 16 states which require some form of special injury in order to support an action for wrongful civil proceedings. O’Toole v Franklin, 279 Or 513, 518, fn 3; 569 P2d 561 (1977), lists the same 16 states and adds Kentucky.

24 52 Am Jur 2d, supra, § 10, p 193; Prosser, Torts (4th ed), § 120, p 853. The Reporter’s Note, supra, lists 30 states which purportedly follow this majority rule. O’Toole v Franklin, supra, pp 518-519, fn 4, identifies 23 states.

Since the Reporter’s Note and O’Toole differ over the categorization of Kentucky (see fn 23, supra), and both include Michigan (see part IVB of this opinion) as a "majority rule” state, the classification of the states does not appear to be entirely reliable.

25 Brand v Hinchman, 68 Mich 590, 596; 36 NW 664 (1888).

26 Id.

27 Id., p 597.

28 Id., pp 597-598.

29 June, a laborer, consulted Crowell, an attorney, regarding a dubious claim of $50 that June purported to have against Antcliff, a prosperous farmer in a neighboring county. Crowell secured a summons against Antcliff from a justice of the peace and arranged to have it served by a deputy sheriff of the county where Antcliff resided, although the service was invalid because the summons was directed to officers of the county in which the justice sat. On the day set for return of the summons Antcliff, who in the meantime had received an anonymous letter advising him not to appear, was absent. The justice heard testimony from June, under questioning by Crowell, to the effect that Antcliff owed June $300 for goods and services; judgment was entered against Antcliff in that amount. Crowell subsequently obtained a writ of execution based upon the judgment and, accompanied by the sheriff of the county where Antcliff resided, rode out to Antcliff’s farm to confront him with the execution. Antcliff denied any debt to June but, under threat by Crowell to drive off his stock and levy on his farm, paid $240 cash to settle the matter, most of which Crowell apparently pocketed.

Antcliff brought suit against June and Crowell upon a two-count declaration (see fn 31, infra) alleging that they had acted falsely, maliciously and without probable cause in obtaining the judgment, execution and payment. The circuit judge entered a directed verdict for the defendants at the close of Antcliff’s proofs.

Antcliff appealed and the defendants responded that the declaration did not establish malicious prosecution because it showed that the court lacked jurisdiction and did not indicate that a prior proceeding had terminated in the plaintiff’s favor.

30 "I am satisfied, however, that if the wrong and injury is done by a malicious suit it is immaterial, upon principle, whether the court had jurisdiction or not to entertain such suit. For every malicious wrong there is certainly in this day and age a remedy; and, under our liberal system of pleading in this state, a plain and clear statement of the facts constituting the wrong is sufficient, and it is but little matter, in actions of trespass on the case, what the action is named or called.

"The first count of the declaration plainly shows a malicious and actionable wrong, and every averment was supported by cogent proof. It may be that the prosecution of the suit to judgment in the justice’s court by itself alone did not touch the person or property of the plaintiff, but the writer of this opinion, in Brand v Hinchman, held that it was not necessary, in an action for the malicious prosecution of a civil suit, that the person should be molested or property seized, if it appeared that the suit was malicious, and without probable cause, and the party had been injured or damaged thereby. See 68 Mich 596-598, and cases there cited. I am still of the opinion there expressed, and have been fortified in my position by the facts of this case, and the decisions of other courts, not cited in Brand v Hinchman [citations omitted].” Antcliff v June, 81 Mich 477, 490; 45 NW 1019 (1890).

31 Id., p 492. The Court also found that the second count of the declaration stated a claim for abuse of process, and the case has been cited for that proposition. Marlatte v Weickgenant, 147 Mich 266, 275; 110 NW 1061 (1907); Spear v Pendill, 164 Mich 620, 624; 130 NW 343 (1911). See, also, Powers v Houghton, fn 32, infra.

32 In Pawlowski v Jenks, 115 Mich 275; 73 NW 238 (1897), the plaintiff brought an action alleging the malicious prosecution of an action in chancery to restrain him from operating a business selling intoxicating liquors. This Court held that the advice of counsel to a client who has fully disclosed the facts, to the effect that the client has a meritorious case, establishes as a matter of law the client’s probable cause for bringing the action. Since no question concerning the sufficiency of the complaint was discussed and the defendant had obtained a permanent injunction in the prior action, the case is at most evidence that some members of the bar regarded an injunction which interfered with the plaintiff’s business as a special injury which would support a subsequent action for malicious prosecution of civil proceedings.

In Powers v Houghton, 159 Mich 372; 123 NW 1108 (1909), the defendants had sued out a writ of replevin against Powers, pursuant to which an officer had seized 16 lambs. Powers had sold the lambs to another three days before the writ was issued and was in the act of delivering them to the buyer when they were seized. After obtaining a favorable verdict in the replevin action, Powers brought an action for malicious prosecution and recovered a judgment from which defendants appealed. This Court held that a defendant in a replevin suit who at the time of seizure had no property interest in the goods taken could not maintain an action for malicious prosecution against the initiator of the replevin action. The Court’s discussion demonstrates that it regarded actions for malicious prosecution of civil proceedings as maintainable only in special circumstances and did not read Brand and Antcliff as establishing a broader rule:

"We have, then, in the case at bar, this situation: The plaintiff seeks to recover damages for the malicious prosecution of a civil action, by which he was deprived of neither his liberty, reputation, nor property, but simply of the possession of property belonging to another. Pollock, in his work on Torts (8th ed), at page 316, states the rule as follows:

" 'Generally speaking, it is not an actionable wrong to institute civil proceedings without reasonable and probable cause, even if malice be proved. For, in contemplation of law, the defendant, who is unreasonably sued, is sufficiently indemnified by a judgment in his favor, which gives him his costs against the-plaintiff.’

"See, also, Quartz Hill [Consolidated] Gold Mining Co v Eyre, LR 11 QBD 674; 52 LJQB(NS) 488 [1883], where it said:

" '[I]n the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution.’

"This is the English rule, which has been somewhat modified in America. In 1 Cooley on Torts (3d ed), at page 345, the rule is stated to be that:

" 'In some cases an action may be maintained for the malicious institution of a civil suit, but the authorities are not entirely agreed what cases are embraced within the rule.’

"Among those malicious civil suits giving a right of action, he enumerates arrest, attachment, garnishment, insanity cases, injunctions, receivers, and other suits that interfere with person or property. Under the last class of cases, he says (page 348):

" 'So a suit for malicious prosecution will lie where the plaintiffs property or business has been interfered with, by the appointment of a receiver, the granting of an injunction, or by writ of replevin.’

"As supporting the text touching writs of replevin, he cites Brounstein v Sahlein, 65 Hun [72 NY Sup] 365; 20 NYS 213 [1892]; McPherson v Runyon, 41 Minn 524; 43 NW 392; 16 Am St Rep 727 [1889], Both of these cases have been examined. In the first, not only was the plaintiffs property interfered with, but his business was largely injured. In the second, property of the plaintiff had been taken on the writ.

"In our own state, the case of Brand v Hinchman, 68 Mich 590; 36 NW 664; 13 Am St Rep 362 [1888], is to some extent applicable. There, an attachment was sworn out by defendant, Hinchman, and placed in the sheriffs hands for service. A deputy visited Brand’s store, but made no actual levy, the subject-matter of the suit being adjusted. This court found, however, that there was at least a technical taking and possession of Brand’s property, and the proofs showed that damage resulted to his business as a result of the swearing out of the writ (without probable cause).

"The case of Antcliff v June, 81 Mich 477; 45 NW 1019; 10 LRA 621; 21 Am St Rep 533 [1890], is authority for the proposition that a gross and fraudulent abuse of the process of the court, resulting in damage, gives a right of action to the person sustaining the damage.

"But we have been unable to find a single adjudicated case (and counsel for plaintiff has called our attention to none), where it is held that the defendant in a replevin suit, having no property in the goods taken, may maintain an action for malicious prosecution against the unsuccessful plaintiff in the original action. The authorities are not harmonious upon the question, where the property of the defendant in the original action is taken, and upon that question we express no opinion.” Powers v Houghton, 159 Mich 372, 373-374; 123 NW 1108 (1909).

In Krzyszke v Kamin, 163 Mich 290; 128 NW 190 (1910), the Court held, after surveying Powers v Houghton, supra, and a variety of texts and cases from pther jurisdictions, that an action for malicious prosecution would lie where the defendant had obtained an injunction to restrain the plaintiff from disposing of his personal property on the strength of patently insufficient averments in a judgment creditor’s bill, and where the plaintiff was unable to hold an advertised auction as scheduled because of the injunction — arguably the equivalent of a temporary seizure of his property.

Tomkovich v Mistevich, 222 Mich 425; 192 NW 639 (1923), Scovera v Armbruster, 257 Mich 340; 241 NW 231 (1932), and Fisk v Powell, 349 Mich 604; 84 NW2d 736 (1957), all concerned actions for maliciously obtaining an attachment.

33 In Leeseberg v Builders Plumbing Supply Co, 6 Mich App 321; 149 NW2d 263 (1967), the defendant had obtained a writ of attachment which led to the plaintiffs warehouse being locked for two weeks.

In Rowbotham v Detroit Automobile Inter-Ins Exchange, 69 Mich App 142, 147; 244 NW2d 389 (1976), defendant insurer, having obtained a judgment against plaintiff to recoup an erroneously paid claim for damages arising out of an automobile accident, asked the court clerk to file a certificate of unsatisfied judgment with the Secretary of State, pursuant to a statute which the court later held inapplicable to the judgment in question. The Secretary of State suspended plaintiffs operator’s license. Although the Court of Appeals said that [Michigan courts have clearly expanded [the tort of malicious prosecution] to include malicious civil proceedings”, its holding is more limited: "We believe that a proceeding maliciously instituted to deprive a person of his operator’s license can qualify as a proceeding warranting a tort suit, for the proceeding may adversely affect a legally protected interest. Cf. Carver v Lykes, 262 NC 345; 137 SE2d 139 (1964) (real estate broker’s license).”

In Carver, p 352, the Supreme Court of North Carolina embraced the view that, "under certain circumstances, an action for malicious prosecution may be predicated upon the prosecution, institution, or instigation of an administrative proceeding where such proceeding is adjudicatory in nature and may adversely affect a legally protected interest”. North Carolina follows the "English rule” and extends the tort of malicious prosecution only "to include the malicious institution of civil proceedings which involve an arrest of the person or seizure of property or which result in some special damage”. Id., p 352. "A driver’s license, once issued, is a significant interest subject to constitutional due process protections”, Shavers v Attorney General, 402 Mich 554, 599; 267 NW2d 72 (1978), citing Bell v Burson, 402 US 535, 539; 91 S Ct 1586; 29 L Ed 2d 90 (1971), and deprivation thereof may therefore be regarded as equivalent to a seizure of property, i.e., special injury.

34 Prosser, supra, § 120, p 851; Note, Promoting Recovery by Claimants in Iowa Malicious Prosecution Actions, 64 Iowa L Rev 408 (1979); Note, Malicious Prosecution: An Effective Attack on Spurious Medical Malpractice Claims?, 26 Case Western Reserve L Rev 653, 657-662 (1976); Birnbaum, Physicians Counterattack: Liability of Lawyers for Instituting Unjustiñed Medical Malpractice Actions, 45 Fordham L Rev 1003, 1090 (1977).

35 Prosser, supra, § 120, p 851.

36 Id.

37 O’Toole v Franklin, supra, pp 522-524.

38 The court said:

"The purpose of the special injury rule, however, is to strike a balance between allowing free access to the courts for the vindication of rights without fear of a resulting suit, and the undue exercise of such right. Davis v Boyle Bros, Inc, 73 A2d 517, 521 (DC Mun App, 1950). Appellant’s argument, if accepted, would upset that delicate balance. The nature of his profession, given its profound impact on the lives of those with whom he deals, cannot be allowed to insulate him from potential liability. In order to maintain a free access to the courts by persons with grievances who might otherwise be restrained from seeking redress because of their fear of liability should they fail, the special injury rule has consistently been upheld.

" 'The limitation is sound. When disputes reach the litigious stage, usually some malice is present on both sides. Friendly tort suits are not common. Nor is existence or want of probable cause always easy to determine until the event of the litigation is known. Some margin of safety in asserting rights, though they turn out to be groundless and their assertion accompanied by some degree of ill-will, must be maintained. Otherwise litigation would lead, not to an end of disputing, but to its beginning, and rights violated would go unredressed for fear of the danger of asserting them.’ Melvin v Pence, 76 US App DC 154, 157; 130 F2d 423, 426 (1942).” Ammerman v Newman, 384 A2d 637, 641 (DC App, 1978). .

39 Gem Trading Co, Inc v Cudahy Corp, 92 Wash 2d 956, 965; 603 P2d 828 (1979).

40 Berlin v Nathan, 64 Ill App 3d 940; 381 NE2d 1367 (1978).

41 Jacques v McLaughlin, — RI —; 401 A2d 430 (1979).

42 The sources cited in fn 23, supra, agree that New York, Pennsylvania, New Jersey, Maryland, Ohio, Wisconsin and Texas also follow the.English rule.

43 See, generally, Prosser, supra, § 120, pp 850-856, and 3 Restatement Torts, 2d, §§ 674-681B, pp 452-473. Propriety of purpose is discussed in § 676.

44 See Prosser, supra, § 120, p 855. Cf. Drobczyk v Great Lakes Steel Corp, 367 Mich 318, 322; 116 NW2d 736 (1962).

45 Cf. Canon 2:

"A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.”

EC 2-26 states:

"A lawyer is under no obligation to act as adviser or advocate for every person who may wish to become his client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment.”

46 MCL 600.5838(2); MSA 27A.5838(2).

47 MCL 600.5805(4); MSA 27A.5805(4); cf. Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973).

48 In 1975 a task force composed of representatives from the State Bar of Michigan and a number of medical organizations, meeting to discuss solutions to the problem of escalating medical malpractice insurance premiums and the increasing volume of medical malpractice litigation, issued a list of recommendations which included the enactment of legislation "to allow the issuance of a special 'record subpoena’ for the obtaining of medical records without the necessity of a lawsuit being commenced”, so long as the patient consented to release of the records. Recommendations of the Joint Medical/Legal Task Force on Medical Malpractice, 54 Mich St B J 81, 82 (1975).

49 Compare the heading of the principal portion of plaintiffs brief arguing for recognition of a cause of action against a plaintiffs lawyer for negligence, set out in fn 5, supra.

50 Szlinis v Moulded Fiber Glass Companies, Inc, 80 Mich App 55; 263 NW2d 282 (1977), lv gtd 402 Mich 925 (1978), app dismissed by stipulation 407 Mich 893 (1979), although not a medical malpractice case, illustrates how late-arising developments may provide a plaintiffs lawyer with clear evidence of liability where before there was only suspicion. Four people perished in a boating accident in June, 1969. According to plaintiff-appellant’s brief in this Court, pp 4-5, the first floating tests and inspections failed to reveal any defects in the hull. Subsequent tests conducted in August and September, 1970 revealed certain abnormalities which of themselves were not striking. It was only in January, 1971, that further tests by naval architects revealed that a combination of defects rendered it virtually impossible to right the boat if it capsized — not an uncommon occurrence in sailing.

In Szlinis the complaint was not filed until after the tests were completed. But suppose the complaint had been filed shortly after the accident and subsequent preliminary testing for defects had been unproductive. Had the plaintiffs attorney then evaluated the case in the shadow of a potential tort action or motion to recover litigation expenses by a boat manufacturer claiming injury to business reputation and loss of sales, might he not have decided to discontinue the action rather than conduct additional tests?

51 See Orozco v Henry Ford Hospital, 408 Mich 248; 290 NW2d 363 (1980).

We do not suggest that the prior action in the instant matter was a case where expert testimony was not necessary.

52 As already noted, the negligence section of plaintiff’s brief refers to Code of Professional Responsibility and Canons, Canon 1, DR 1-102(A), Canon 6, DR 6-101(A), Canon 7, DR 7-102(A), and various Ethical Considerations associated with Canon 7, especially EC 7-4 and EC 7-10. All eight divisions of DR 7-102(A) make reference to the lawyer’s knowledge in defining prohibited conduct.

53 Cf. Murdock v Gerth, 65 Cal App 2d 170, 179; 150 P2d 489, 493 (1944):

"It would be inimical to the administration of justice if an attorney were to be held liable to a malicious prosecution action where, after an honest, industrious search of the authorities, upon facts stated to him by his client, he advises the latter that he has a good cause of action, although the courts upon a trial of such action decide that the attorney’s judgment was erroneous. If the issue which the attorney is called upon to decide is fairly debatable, then under his oath of office, he is not only authorized but obligated to present and urge his client’s claim upon the court. And if it subsequently is determined that the position honestly taken by the attorney was erroneous he should be relieved from responsibility.”

54 "A lawyer shall not accept employment on behalf of a person if he knows or it is obvious that such a person wishes to:

"(1) Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any person.

"(2) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.” DR 2-109(A), Acceptance of Employment.

55 "A lawyer should represent a client zealously within the bounds of the law.” Canon 7.

56 See EC 7-3:

“Where the bounds of law are uncertain, the action of a lawyer may depend on whether he is serving as advocate or adviser. A lawyer may serve simultaneously as both advocate and adviser, but the two roles are essentially different. In asserting a position on behalf of his client, an advocate for the most part deals with past conduct and must take the facts as he finds them. By contrast, a lawyer serving as adviser primarily assists his client in determining the course of future conduct and relationships. While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law. In serving a client as adviser, a lawyer in appropriate circumstances should give his professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law.”

57 3 Restatement Torts, 2d, § 675, pp 457-458.

58 Hamilton v Smith, 39 Mich 222 (1878); Drobczyk v Great Lakes Steel Corp, supra; Renda v International Union, UAW, 366 Mich 58, 100-101; 114 NW2d 343 (1962).

59 Hamilton v Smith, supra; Carson v Edgeworth, 43 Mich 241; 5 NW 282 (1880); LeClear v Perkins, 103 Mich 131; 61 NW 357 (1894).

60 In most, if not all, attorney-client relationships, decision-making authority ultimately rests with the client. A client may, in apparent good faith, insist upon pressing the claim although the attorney has explained that it has no chance of succeeding. An attorney’s ability to withdraw from representation is limited if the client objects.

61 A contingent fee arrangement or the expectation of the attorney that he will ultimately receive a fee for his services is not evidence of an improper purpose. In contrast, a purpose to secure an improper adjudication of the client’s claim, as by coercing á settlement unrelated to the merits from an opponent who wishes to avoid the harassment, expense or delay of letting the lawsuit run its course, is an improper purpose. See 3 Restatement Torts, 2d, § 674, comment d, p 453.