The New Jersey Law Journal reports that a New Jersey appellate court has held that attorneys cannot be held liable for malicious prosecution even when their client pursued the underlying litigation for an improper purpose unless the attorneys pursued the case for an improper purpose of their own. In Pennsylvania cases for abuse of process are typically filed pursuant to a statutory provision known as the Dragonetti Act. Court decisions applying the Act are more or less consistent with the New Jersey decision. In Pennsylvania, to prevail in such a claim, the plaintiff must show that the underlying case was pursued in bad faith, both objectively and subjectively. In other words, the lawyer cannot be liable for abuse of process unless he or she held the subjective belief that the case lacked merit or had an improper purpose for pursuing the matter. The New Jersey case is significant, however, because it would appear to go a step further in that the court held that the lawyer can be insulated from liability even where he knows that the case is weak, and where the client has an improper purpose so long as the lawyer does not have an improper purpose of his own (although it would seem to me that litigating an acknowledged weak or baseless case for a client with malicious intent maybe ought to qualify). It will be interesting to see if this holding finds wider application or if its just an outlier.
