Friedman v. Dozorc

¶1The 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.

¶2The 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”.

¶3We hold that:

¶4(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;

¶5*17(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;

¶6(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.

¶7We 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.

¶8I

¶9Leona 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.

¶10On January 11, 1972, attorneys Dozorc and *18Golden, 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

¶11Dr. 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:

¶12"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 *19he 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.”

¶13The 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.

¶14The 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.

¶15This Court granted leave to appeal on both the plaintiff’s application from that portion of the *20Court 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

¶16II

¶17A

¶18Plaintiff 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.

¶19Plaintiff 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 *21this duty is created by the Code of Professional Responsibility and by the Michigan General Court Rules.6

¶20Plaintiff 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 *22the 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.

¶21Defendants 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.

¶22B

¶23In 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

¶24Dean 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.

¶25Assuming that an attorney has an obligation to *23his 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.

¶26The 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.

¶27In 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:

¶28*24"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.)

¶29In 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 *25interests 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):

¶30"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.)

¶31In 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:

¶32"[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.”

¶33We 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.

¶34*26Recognition 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.

¶35Plaintiff 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.

¶36Defendants 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.

¶37We acknowledge that our ability to predict the *27effect 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):

¶38"[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’.”

¶39We 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.

¶40We briefly address, for the sake of completeness, the other arguments advanced by plaintiff and amici.

¶41Plaintiff 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.*2813 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.

¶42Plaintiff 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.

¶43We 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

¶44*29An 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

¶45Defendants 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

¶46*30In 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.

¶47Ill

¶48To 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

¶49Plaintiff 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.

¶50Defendants counter that plaintiff’s pleadings are *31deficient 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.

¶51We 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’ ”.

¶52We 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).

¶53IV

¶54Plaintiff 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 ar*32gues 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.

¶55Defendants 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.

¶56We 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

¶57A

¶58The recognition of an action for malicious prosecution developed as an adjunct to the English practice of awarding costs to the prevailing party20*33in 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 *34proceedings unless one of these types of injury, as narrowly defined by the cases, is present.22

¶59A 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

¶60B

¶61The 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.

¶62This 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 *35plaintiff 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.

¶63Brand 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.

¶64When 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:

¶65"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 *36levy, 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

¶66The 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:

¶67"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.)

¶68Reviewing 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:

¶69"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 *37necessary in this case to express any opinion upon this matter. ”28 (Emphasis supplied.)

¶70Brandstands 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.

¶71Nor 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 *38in Brand30 but again revealed his discussion to be dictum by concluding:

¶72"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.)

¶73Thus, Antcliffstands 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.

¶74In the foregoing cases and others subsequently *39decided by this Court,32 the plaintiff suffered some *40special injury equivalent to a seizure of property as a result of the defendant’s institution of civil *41proceedings. 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.

¶75Nor 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

¶76C

¶77Since this Court has not heretofore declared that an action for malicious prosecution of civil pro*42ceedings 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.

¶78Most 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.

¶79We 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 *43is 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.

¶80Although 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-*44lie — 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.

¶81This 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.

¶82At 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 *45amen, 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.

¶83Because 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.

¶84The 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.

¶85Permitting 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 indis*46criminate 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.

¶86The 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.

¶87Other 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.

¶88In 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 *47on 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.

¶89In 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 ad*48hering to the special injury rule includes a number of other major jurisdictions.42

¶90V

¶91Apart 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

¶92The following discussion addresses the chief concern of this case: the conditions under which the attorney for an unsuccessful plaintiff may be held liable.

¶93A

¶94The 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.

¶95The Court of Appeals adopted, and plaintiff endorses, the standard for determining whether an *49attorney 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):

¶96"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.

¶97"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.”

¶98The 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.”

¶99In our view, this standard, while well-intentioned, is inconsistent with the role of the attorney in an adversary system.

¶100Our legal system favors the representation of *50litigants 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.

¶101A 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.

¶102In 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, *51defendants 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

¶103Moreover, 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*52and such developments may occur even on the eve of trial.

¶104Indeed, 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.

¶105Indeed, 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:

¶106"(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 *53would serve merely to harass or maliciously injure another.

¶107"(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.)

¶108DR 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 *54language 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.

¶109Framed 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.

¶110The Restatement’s definition of probable cause provides ample guidance whether damages are sought from a lawyer, his client or both:_

¶111*55"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

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

¶113"(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.)

¶114As 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.

¶115B

¶116This 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.

¶117A 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 defen*56dant 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:

¶118"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.)

¶119While 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 *57drawn from the lawyer’s continuing to advance a claim which he knew to be untenable.60

¶120The 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

¶121We 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.