Abuse of Process and Wrongful Use of Civil Process

Abstract:     
A plaintiff, acting through his or her attorney, sues a defendant claiming that the defendant breached a contract or committed medical malpractice. Because the attorney has a lead role in the judicial system and the particular litigation, the defendant justly may develop a healthy dislike for the plaintiff's attorney. For the defendant, the plaintiff's attorney often is the embodiment of what the defendant feels is a bogus lawsuit. In addition, the zeal with which the plaintiff's attorney pursues the claim may cause the defendant to believe that the plaintiff's counsel is particularly evil. If the plaintiff's case ultimately fails, it is at least understandable that the defendant might want to take steps to get even. The torts of wrongful initiation of civil proceedings and abuse of process sit at the ready for such an aggrieved defendant. Lawyers should not live in fear of these torts, however, because they are extremely difficult to establish against anyone and especially against lawyers.

Keywords: professional responsibility, ethics, abuse of process, malicious prosecution, wrongful use of process

JEL Classifications: K40, K41

Accepted Paper Series