Wilson v. Hayes

Two doctors brought suit against an attorney alleging malicious prosecution and abuse of process. The claims arose out of a medical malpractice action that the attorney brought against the doctors on behalf of his client. The client claimed that the doctors’ negligence resulted in his wife’s death. The underlying malpractice suit was eventually disposed of without trial, and this action followed.

After a bench trial the district court dismissed the doctors’ petition. The court found that the doctors had not established either claim. We affirm.

I. Background Facts and Proceedings.

The district court made detailed findings of facts, all of which we find were supported by the evidence. These facts include the following.

A. The Principals.

Dr. Michael Wilson, an orthopedic surgeon, was in private practice in Burlington, Iowa, at the time the medical malpractice action began. He was a shareholder and an employee of Orthopedic & Reconstructive Surgery Associates, P.C. He practiced in Burlington from 1979 to 1985.

Michael graduated from the University of Iowa Medical School in 1975. After completing medical school, Michael entered a four-year orthopedic residency at Mayo Clinic. After Michael finished his residency, he relocated to Burlington where he entered private practice.

Dr. Kathleen Wilson, an internist and a gastroenterologist, was also in private practice in Burlington when the medical malpractice suit began. Kathleen was a *253 sole practitioner. She is also a graduate of the University of Iowa Medical School. Kathleen completed a three-year residency in internal medicine at Mayo Clinic. Following the residency, Kathleen completed a two-year fellowship in gastroenterology at Mayo. She then moved to Burlington and began her private practice.

Michael and Kathleen are married and were married at the time the medical malpractice suits began. Although the Wil-sons had separate practices, they did refer patients to each other.

James P. Hayes is an Iowa City attorney. Hayes represented Ñamen Rashid in the medical malpractice action that Ñamen brought against the Wilsons.

Ñamen is a resident of Fort Madison. Ñamen brought the medical malpractice action against the Wilsons as the executor of the estate of his deceased wife, Ellen. Before Ñamen brought the suit, he was Kathleen’s patient.

Ellen Rashid had never been Kathleen’s patient. But Ellen had been Michael’s patient from December 1982 to January 1983.

The Rashids had two adult children, Terry and Carol. Both children consulted with Hayes and Ñamen about the medical malpractice suit.

B. The medical malpractice lawsuit.

On July 8, 1983, Ellen was involved in an automobile accident. She was taken from the scene of the accident to the emergency room at Fort Madison Community Hospital. At the hospital Ellen complained of pain in her right ankle as well as general body aches. Dr. James Kannenburg examined and treated Ellen in the emergency room. The emergency room medical records note that Ellen had been in an automobile accident and that she had possibly hit her head and lost consciousness.

X-rays taken of Ellen’s ankle showed no evidence of a fracture, dislocation, or any pathology involving the bones of the ankle. Ellen was released from the hospital shortly after her arrival with no significant medical instructions.

Even though the hospital x-rays showed no sign of significant injury, Ellen still experienced pain and discomfort in her right ankle from July 8 to July 12. Because of this pain, Ellen tried to make an appointment with Michael on July 12. A staff member at Michael’s office, however, told Ellen that she needed a referral from another doctor. Ñamen called Kathleen’s office for a referral. Kathleen’s nurse suggested that Ñamen take Ellen to the Burlington Medical Center emergency room for treatment.

On July 13 Ñamen took Ellen to the Burlington Medical Center. Emergency records at the medical center list “K. Wilson” as Ellen’s family physician. These records also note that Ellen had been in a “2-car-accident 7-8-83” and was experiencing a headache together with pain in her right leg, both arms, neck, and right hand.

At the hospital Ellen was examined and treated by the emergency room physician, Dr. Gundrum. Dr. Gundrum ordered x-rays and diagnosed a contusion of the right ankle, elbow, and base of the cervical spine. Apparently no special treatment was ordered, and Ellen was released.

On the same day of this hospital visit, Ellen and Ñamen went to Kathleen’s office. Neither Ellen nor Ñamen had a scheduled appointment with Kathleen that day.

Because Ñamen was Kathleen’s patient, she agreed to see them. They went to Kathleen’s office where Ñamen and Ellen explained Ellen’s injuries. Ñamen and Ellen also relayed the information that both emergency room physicians had told them. The couple explained that Ellen had tried to get an appointment with Michael, but she needed a referral.

Kathleen did not have Ellen’s hospital x-rays, but she could see that Ellen’s ankle was swollen. Kathleen agreed to call Michael’s office. Michael’s office then made an appointment for Ellen that afternoon. As Ñamen and Ellen were leaving Kathleen’s office, Ñamen wanted to pay for the visit. He was told there was no charge, but he insisted on paying $17. This amount was less than the charge for a normal office visit.

*254 Michael saw Ellen the same day. He reviewed Ellen’s hospital x-rays. He also took a medical history. Michael’s records note that Ellen’s chief complaint involved pain and swelling in her right ankle. Michael told Ellen this pain would probably subside in two to three days and suggested an ace wrap on the ankle to control the swelling. No other treatment or medications were suggested. Because Kathleen was the referring physician, Michael’s office sent her a copy of his report.

On July 27 Ellen suffered a ruptured congenital cerebral aneurysm. Emergency surgery was performed at University Hospitals in Iowa City to repair the rupture. Ellen died on August 5 due to complications following surgery.

Two months after Ellen’s death, Ñamen began discussing a possible medical malpractice lawsuit. He contacted a few local attorneys, but due to conflicts Ñamen was referred to Hayes.

Ñamen and his daughter, Carol, met with Hayes on December 20 to discuss a possible lawsuit. Hayes’ notes of this first meeting indicate that since Ellen’s automobile accident in July she complained of headaches and that she was getting worse. According to the notes, Ellen complained of these headaches to both Kathleen and Michael. Hayes had Ñamen sign patient waiver forms. Hayes subsequently requested Ellen’s medical records from Michael, Kathleen, Fort Madison Community Hospital, Burlington Medical Center, University of Iowa Hospitals and Clinics, and Dr. Kannenburg.

On June 1984 Hayes met with Ñamen and Namen’s son, Terry. At this meeting, father and son told Hayes that Ellen’s head was hurting on the day of the car accident. They told Hayes that Ñamen had called Kathleen’s office on July 12 because Ellen was experiencing terrible headaches. They said Kathleen’s nurse had referred them to the hospital for x-rays. They also told Hayes that Ellen had specifically told Michael about the headaches but that Michael said there was nothing wrong with her. In his summary of the meeting, Hayes noted that the emergency room records of July 13 showed that Ellen complained of a headache.

Following this meeting Hayes wrote to Dr. Jon Brillman, a board certified neurologist in Pennsylvania. Hayes had worked with Brillman on previous medical malpractice cases. In his letter Hayes summarized the facts as related to him by Ñamen and his children. Hayes also sent copies of Ellen’s medical records. Hayes asked Brill-man to determine whether “the orthopedist failed to deliver to Ellen Rashid the expected standard of care under the circumstances.” In making this determination, Brillman was asked to assume the facts as stated by the Rashids as true.

Brillman called Hayes with his opinion on August 1, 1984. Brillman based his opinion on the following assumptions: “an automobile accident, a ‘black-out,’ amnesia, and a primary complaint of severe headaches on the following days.” It was Brillman’s opinion that an orthopedist

could not be faulted for not diagnosing or suspecting the aneurysm right after the accident, but if Ellen continued to complain of headaches a physician and an orthopedist presented with such history and complaints should have referred her to a neurologist or ordered a CAT scan, and a failure to do so would constitute a failure to meet the expected standard of care.

Brillman theorized that Ellen had suffered a small rupture of the aneurysm that had caused her to black out and have the accident. Because of this rupture, Brill-man thought there was early bleeding that had healed somewhat but had caused the headaches. According to Brillman there probably was a rerupture of the aneurysm on July 27 that ultimately led to Ellen’s death. Brillman believed that an investigation of the headaches on July 13 could very well have prevented the rerupture of the aneurysm on July 27.

Brillman agreed to work with Hayes as an expert witness on the case.

After this call, Hayes wrote to Ñamen and told him what Brillman had said. Hayes then met with Ñamen and his chil *255 dren on August 15, 1984. At this meeting they decided to sue Michael and Kathleen for malpractice.

On October 31 Hayes sent Ñamen a copy of the proposed petition. In his letter to Ñamen, Hayes asked Ñamen to review the petition and to call him with questions, suggestions or changes. The petition was filed on January 24, 1985.

The Wilsons were served on January 25, a Friday. Over the weekend they discussed the lawsuit at length and its implications for their medical practices and their future. By Monday they had decided to end their private practices and enter the military. They made this decision believing that in the military they could practice medicine without fear of personal suits for malpractice. Eventually both did enter the military.

Kathleen filed an answer to the petition on February 7. In it she specifically denied a doctor-patient relationship between Ellen and her. Kathleen’s answer also alleged that she never examined, treated, or consulted with Ellen. The answer asserted that Kathleen’s only connection with Ellen was to set up an appointment with Michael.

After Kathleen learned that Dr. Brillman was scheduled to be an expert witness, she telephoned him on February 25. Brillman described Kathleen as being “very upset.” He in turn was upset by her call. Kathleen described Ñamen to Brillman as a litigious person who had suffered from emotional problems. She also gave Brillman the details about Ellen’s visits to her office and to Michael’s office. Kathleen emphasized that Ellen had only complained about her sprained ankle and had never made any complaints about headaches. Brillman responded that if the facts were as she said, no malpractice had been committed and he would not testify.

Brillman’s opinion relied heavily on Ellen’s alleged complaints of severe and unremitting headaches. Because of Kathleen’s call, Brillman reviewed the materials he had received from Hayes. As a result of this review Brillman felt that the records tended to support Kathleen’s claim that there had been no significant complaints of headaches. So he decided not to testify.

Still incensed about the lawsuit, Kathleen wrote a letter to Representative Del Stromer, the minority whip of the Iowa Legislature. Her letter detailed the facts about the lawsuit and also disclosed certain medical facts about Namen’s mental illness. Kathleen asked Stromer to change Iowa law and make it easier for doctors to sue attorneys for malicious prosecution and abuse of process.

The letter triggered a call to Hayes from William J. Wimmer, the lobbyist for the Association of Iowa Trial Lawyers. Wim-mer also sent Hayes a copy of Kathleen’s letter to Stromer. After visiting with Wim-mer, Hayes realized he was a potential defendant in a suit by the Wilsons.

On March 13 Brillman telephoned Hayes with the news: he would not testify. Brill-man told Hayes that after reviewing the records, he concluded there was no evidence of malpractice by the Wilsons. Apparently, Brillman had not reviewed the medical records before giving Hayes his initial opinion by telephone on August 1, 1984. Brillman’s decision not to testify was based on a lack of documentation that headaches were a prominent part of Ellen’s initial complaints. Without the complaint of headaches, Brillman felt there was no basis for his opinion of an aneurysmal rupture at the time of the accident. The next day Brillman wrote Hayes, documenting what he had told Hayes the day before.

On March 21 Kathleen moved for summary judgment. Kathleen’s motion was based solely on a claim that no doctor-patient relationship existed between Ellen and her. Hayes forwarded a copy of the motion to Ñamen. After reviewing the motion, Ñamen wrote Hayes and again recounted the events. Ñamen swore that his version of the facts was true and volunteered to take a lie detector test.

On March 25 Kathleen’s attorney wrote to Hayes. The attorney suggested an early deposition of Brillman because the Wil-sons felt Brillman would not support a claim of malpractice against either of them.

*256 On March 28 Hayes replied to this letter. Hayes told the attorney the parties should be deposed before the expert so the expert could have the defendants’ versions of the facts.

On the same day Hayes wrote Brillman asking for his opinion based on two different sets of facts. Under one set of facts Brillman was asked to assume Ellen had complained to Kathleen and Michael about a violent, unremitting headache. Under the other set of facts Brillman was asked to assume no such complaint had been made.

On March 29 Brillman called Hayes. Brillman told Hayes that Kathleen had called him two days before, “virtually begging him not to hurt her.” Brillman told Hayes he would not testify but he would help Hayes find another expert. Brillman suggested Dr. Arthur Taub of Yale University.

Several days later Brillman wrote to Hayes. Brillman related that the medical records showed no sign of an initial aneu-rysmal rupture and revealed no initial chief complaint of a headache. Based on these records Brillman concluded the Wilsons had committed no negligence. Responding to Hayes’ request to assume Ellen’s chief complaint to the Wilsons was one of a violent, unremitting headache, Brillman reached a different conclusion. Under this set of facts, Brillman believed the Wilsons should have undertaken further investigation as to the cause of the headache.

On April 5 Hayes filed a resistance to Kathleen’s motion for summary judgment. He supported the resistance with affidavits from Rashid and his daughter, Carol. The gist of the two affidavits was that Ellen had suffered severe headaches which she complained of to the Wilsons. Hayes also attached the July 13, 1983, emergency room records listing Kathleen as Ellen’s physician.

Kathleen filed additional affidavits in support of her motion for summary judgment. These included one from her office staff and several from personnel at the Burlington Medical Center. In substance these affidavits denied any doctor-patient relationship between Kathleen and Ellen. They also denied that Kathleen had done anything for Ellen except to make an appointment with Michael. Finally, the affidavits denied that Ellen had ever complained of headaches either to the medical center or to Kathleen and her staff. In her own affidavit Kathleen admitted that Ña-men had paid $17 for the July 13, 1983, office call. However, she asserted that -Ñamen paid this amount despite the fact that he had been told there was no charge for the call.

The motion for summary judgment was heard on April 22. Several weeks later Ñamen, Kathleen, and Michael were deposed. Except as to two points, Namen’s deposition virtually corroborated Kathleen’s account of the July 13, 1983, office visit: Kathleen’s only involvement was to make an appointment for Ellen to see Michael at Namen’s request. Ñamen conceded that Kathleen had not examined Ellen, had not questioned Ellen about her symptoms, had not seen Ellen’s x-rays, and had not treated Ellen.

In contrast to Kathleen’s account, Ña-men did testify that Ellen had complained to Kathleen that she was still having terrible headaches. In addition, Namen’s version of the $17 payment also differed. According to Ñamen he asked the receptionist how much the bill was and she presented him with a bill for $17 which he paid.

Kathleen attached portions of Namen’s deposition covering these matters to her motion for summary judgment. Hayes requested additional time to respond to Kathleen’s motion and this request was granted. Hayes thereafter supplemented the resistance with several affidavits.

Kathleen’s motion for summary judgment was sustained on June 17. The essence of the ruling was that no doctor-patient relationship had existed between Kathleen and Ellen. So, according to the ruling, Kathleen “had no relevant duty to Ellen and accordingly could not be liable to her (or to her personal representative) for medical malpractice.” In reaching that conclusion the court relied heavily on Na-men’s admissions in his deposition.

*257 Hayes forwarded the ruling to Ñamen and suggested that they should get together to discuss a possible appeal.

When Hayes and Ñamen left the depositions, the two talked about the possibility of settlement. They also talked about releases for everyone, including Hayes, as part of the settlement. Ñamen was agreeable to the release idea.

Shortly after the depositions and before the summary judgment ruling, Hayes had begun settlement negotiations with the Wilsons’ attorneys. The Wilsons were amenable to releasing Ñamen but not Hayes. The Wilsons’ attorney gave Hayes this counterproposal. In turn, Hayes discussed the counterproposal with the Rash-ids.

By this time Ñamen had become incensed about Kathleen’s letter to Del Stromer. Ñamen wanted to sue her for disclosing confidential medical information about him to Stromer. After that, Ñamen was never amenable to settlement.

Hayes met with the Rashids on June 25 to talk about appealing the summary judgment ruling. Ñamen wanted to appeal. Hayes then appealed and told Ñamen that he had done so.

After Brillman refused to testify, Hayes set out to find a new expert witness. Hayes contacted at least five doctors. In general, these doctors evaluated the case the same. They all noted the discrepancy between Namen’s version and the Wilsons’ version. The doctors’ opinions generally coincided with Brillman’s: if the Wilsons’ version was true there was no malpractice; if Namen’s version was true, there was.

Because of the problems he was encountering with the experts, Hayes began to realize that a trial would probably be unsuccessful. Hayes tried to convince Ña-men of this and tried to convince him to settle. Ñamen refused to budge.

In an August 29 letter to Ñamen and Namen’s children, Hayes told them that the Wilsons’ attorneys had made several inquiries about a release and dismissal of the case. Hayes urged settlement because of the difficulty he was having with the experts. He told the Rashids that they should consider this option as “the best alternative at the present time.” In this letter Hayes did not refer to his own release.

In response Ñamen wrote Hayes and suggested that a certain doctor be contacted as an expert. Ñamen also told Hayes he would not dismiss the suit.

The Wilsons’ attorneys made several more attempts to settle the suit to no avail.

Finally, in February 1986, Hayes wrote to Ñamen suggesting two alternatives: Hayes would assist him in either dismissing the case or in finding him another attorney. In a return letter, Ñamen said he would never dismiss the case and that he expected Hayes to represent him at trial or to find him another attorney.

In response, Hayes wrote Ñamen in April requesting payment of $1878 for expenses. Hayes also indicated that pursuing the case to trial would cost Ñamen $10,000 to $15,000 and that his firm would require Ñamen to advance $12,500 for future expenses. Finally, Hayes told Ñamen that if this arrangement was not satisfactory, he intended to withdraw because of the substantial difference between the two concerning the merits of the case.

Ñamen responded, insisting that Hayes continue with the case. Ñamen also made some vague threats as to what would happen if Hayes withdrew.

In May Hayes filed a motion to withdraw in Michael’s case. Hayes cited the differences between Ñamen and himself. Hayes also asserted that he had asked Ñamen to hire other counsel but Ñamen had failed to do so.

Following a hearing, the court granted Hayes’ motion to withdraw, which was formally approved by a written order on June 12, 1986.

Ñamen apparently never could hire new counsel to take over the case against Michael. Michael then filed a motion for. summary judgment in July. Ñamen did not attend the hearing on the motion which was scheduled for July 23. Ñamen did, however, inform the court by letter that he wanted the case dismissed.

*258 The district court continued the summary judgment hearing until August 4 at which time Ñamen appeared in person. At the hearing Ñamen told the court he wanted to dismiss not only the district court action but the appeal as well. The district court dismissed the action against Michael. The court, however, had no jurisdiction to dismiss the appeal.

Hayes was not aware that Ñamen wanted to dismiss the appeal. When he found out, Hayes sent Ñamen an authorization to do so. In the accompanying letter Hayes explained he understood Ñamen wanted to dismiss the appeal. Ñamen never responded to Hayes’ letter, which was sent September 16.

On September 16 Kathleen filed a motion to dismiss the appeal. She supported the motion with a transcript of the August 4 hearing at which Ñamen had stated he wanted the appeal dismissed. There was no resistance to this motion. On October 27 this court dismissed the appeal.

C. The Malicious Prosecution and Abuse of Process Claims.

Following the dismissal of both the district court action and the appeal, the Wil-sons sued Hayes for malicious prosecution and abuse of process. In this action, they claim that Hayes’ conduct in initiating the original lawsuit and then continuing the case constituted malicious prosecution. In addition the Wilsons contend that Hayes committed an abuse of process when he sought a personal release instead of dismissing the lawsuit.

The Wilsons’ claims were filed and tried at law to the court. Following trial, the district court filed extensive findings of fact and conclusions of law. The court held that the Wilsons had failed to prove by a preponderance of the evidence the essential elements of each tort.

The Wilsons appealed and Hayes cross-appealed.

As to their malicious prosecution claim, the Wilsons contend that, contrary to the district court’s findings, they did establish that Hayes lacked probable cause and therefore acted with malice toward them in initiating and continuing the lawsuit.

The Wilsons also contend they established their claim of abuse of process. They argue that contrary to the district court’s findings, Hayes’ primary purpose for continuing the lawsuit was to secure a release for himself. They argue that such conduct was improper and constituted an abuse of legal process.

In his cross-appeal Hayes contends the district court erred when it did not sustain his motion for directed verdict. In his motion Hayes had contended that the Wilsons were required to produce expert testimony on lack of probable cause and on whether he properly used legal process. Three organizations have filed Amicus Curiae briefs contending that expert testimony should be required to establish lack of probable cause in a malicious prosecution action against an attorney. These organizations include the Iowa State Bar Association, the Iowa Trial Lawyers Association, and the Iowa Academy of Trial Lawyers.

Our scope of review in actions for malicious prosecution and abuse of process is limited to correction of errors at law. Royce v. Hoening, 423 N.W.2d 198, 200 (Iowa 1988) (citing Iowa R.App.P. 4). Findings of fact in jury-waived cases shall have the effect of a special verdict. Iowa R.App.P. 4. We are bound by the trial court’s findings of fact if they are supported by substantial evidence. Iowa R.App.P. 14(f)(1). Evidence is substantial when a reasonable mind could accept it as adequate to reach the same findings. Waukon Auto Supply v. Farmers & Merchants Sav. Bank, 440 N.W.2d 844, 846 (Iowa 1989).

II. The Issues on Appeal.

A. Malicious Prosecution.

Over the years medical malpractice litigation, for whatever reason, has mushroomed. The medical community has been critical of such suits, suggesting that many are frivolous and brought merely for their settlement value. This feeling has prompted a number of doctors to retaliate by bringing malicious prosecution suits *259 against either the original patient plaintiff or the plaintiffs attorney. See Wong v. Tabor, 422 N.E.2d 1279, 1282-83 (Ind.App.1981).

Malicious prosecution began as a remedy for unjustifiable criminal proceedings. Gradually the remedy was extended to the wrongful institution of civil suits. See W. Prosser, Law of Torts § 120, at 889 (Fifth Ed.1984) [hereinafter Prosser]. In fact, the Restatement refers to the civil side of the remedy as the “wrongful use of civil proceedings.” See Restatement (Second) of Torts, Wrongful Use of Civil Proceedings, § 674-681B, at 452-73 (1977). So when applied to civil proceedings, malicious prosecution is actually a misnomer. Prosser § 120, at 892. In our own cases we make no distinction. See, e.g., Sarvold v. Dodson, 237 N.W.2d 447, 448 (Iowa 1976) (“The basis of an action for malicious prosecution consists of the wrongful initiation of an unsuccessful civil or criminal proceeding with malice and without probable cause”).

The remedy’s primary purpose is to provide relief in those cases in which a plaintiff brings a meritless suit and has an improper motive for bringing it. Wong, 422 N.E.2d at 1283. Courts have not favored the remedy and so have construed its requirements strictly against the malicious prosecution plaintiff. Id. According to Prosser, two competing social interests underlie the remedy: the individual interest in freedom from unjustifiable litigation and the social interest in supporting resort to the law. Prosser § 119, at 871.

It is only in recent years that litigants have used the remedy against attorneys. One commentator suggests the remedy focuses on the intent of the original plaintiff rather than on the attorney’s conduct in screening lawsuits. Note, A Lawyer’s Duty to Reject Groundless Litigation, 26 Wayne L.Rev. 1561, 1569 (1980). For that reason it is suggested the remedy is ill-equipped to deter attorneys from filing groundless suits. Id. at 1568. This in turn may account for the reluctance of the courts to hold attorneys liable for malicious prosecution. Wong, 422 N.E.2d at 1283.

We recently summarized the elements of a malicious prosecution suit in a civil setting:

To prevail on a claim for malicious prosecution, the plaintiff must establish each of the following six elements: (1) a previous prosecution, (2) instigation of that prosecution by the defendant, (3) termination of that prosecution by acquittal or discharge of the plaintiff, (4) want of probable cause, (5) malice on the part of defendant for bringing the prosecution, and (6) damage to plaintiff.

Royce v. Hoening, 423 N.W.2d 198, 200 (Iowa 1988); see also Restatement (Second) of Torts §§ 674, 681A (setting forth comparable elements).

The fighting issue here concerns Hayes’ conduct in initiating and continuing the malpractice action. Specifically, did he have probable cause? And did he act with malice or an improper purpose?

While we have addressed the question of probable cause to file suit from a litigant’s standpoint, we have not developed a standard for reviewing an attorney’s decision to file suit. Such a standard requires a careful consideration of the attorney’s duty to the client and freedom of access to the courts:

[In developing a standard for reviewing a lawyer’s decision to file suit], we must be ever mindful that an attorney’s role is to facilitate access to our judicial system for any person seeking legal relief. As such, probable cause is not to be judged merely upon some personal assessment of a claim’s merit. It must encompass consideration of the law’s desire to fully meet the client’s needs. While an attorney is under an ethical duty to avoid suit where its only purpose is to harass or injure, if a balance must be struck between the desire of an adversary to be free from unwarranted accusations and the need of the client for undivided loyalty, the client’s interests must be paramount. ...

We thus emphasize that any standard of probable cause must insure that the attorney’s “duty to his client to present his case vigorously in a manner as favor *260 able to the client as the rules of law and professional ethics will permit” is preserved. ...

We recognize that through an effort to protect every citizen’s free access to the courts some innocent persons may suffer the publicity, expense and other burdens of defending ill-founded lawsuits. While this is regrettable, the chilling effect that a broad rule of attorney liability would have upon the legal system, and ultimately upon its popular acceptance as a means of dispute resolution, appears to outweigh the value of the protection it would afford to those who might be deemed “innocent” defendants.

Wong, 422 N.E.2d at 1285-86; accord Brody v. Ruby, 267 N.W.2d 902, 905 (Iowa 1978).

In keeping with this philosophy, the Restatement has formulated a special rule to govern review of an attorney's conduct in commencing and continuing a lawsuit:

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; and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. 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.

If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.

Restatement (Second) of Torts § 674 comment d (1977) (citations omitted). In short, under this rule the attorney avoids liability if the attorney either had probable cause or acted primarily to have the client’s claim judicially determined.

The improper purpose element in this rule coincides with the concept of malice and is discussed in section 676 of the Restatement:

Propriety of Purpose.

To subject a person to liability for wrongful civil proceedings, the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper adjudication of the claim on which they are based.

Id. § 676.

Comment c to section 676 gives examples of improper purposes: the person bringing suit is aware the claim has no merit; the proceedings are begun because of hostility or ill will; the matter is initiated solely for the purpose of depriving the person against whom it is brought of a beneficial use of property; or, suit is brought for the purpose of forcing a settlement which has no relation to the merits of the claim (a “nuisance” suit).

Our concept of malice for malicious prosecution is set out in Brown v. Monticello State Bank, 360 N.W.2d 81, 87 (Iowa 1984):

Malice means any wrongful act which has been wilfully and purposely done to the injury of another. There must be an improper purpose or motive. Malice may be actual, or it may be inferred from a want of probable cause.

Although this definition seemingly coincides with the concept of improper purpose in section 676 of the Restatement, there is one important difference. Under our definition malice may be inferred from a want of probable cause. Id. Under section 676 a finding of an improper purpose must be supported by evidence independent of the evidence establishing a want of probable cause. See Friedman v. Dozorc, 412 Mich. 1, 56-57, 312 N.W.2d 585, 607 (1981).

The independent evidence requirement stems from the following language in comment d to section 674 of the Restatement:

*261 [E]ven if [the lawyer] has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim.

So the attorney 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.

Friedman, 412 Mich. at 56-57, 312 N.W.2d at 607.

The rule that malice may be inferred from want of probable cause developed in eases in which damages were sought from a lay person. One court suggests that this rule “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.” Id.

Thus, under the Restatement rule as expressed in comment d, an attorney would only be liable if the attorney knowingly initiated or continued a suit for a clearly improper purpose. Filing or continuing a weak case would not be enough. Nor would a failure to fully investigate all the facts prior to suit. So long as the attorney has grounds to support a belief “that bringing a particular action may help to secure a proper adjudication of a claim,” no liability would result. Wong, 422 N.E.2d at 1287; see also Friedman, 412 Mich. at 52-55, 312 N.W.2d at 605-06; 52 Am.Jur.2d Malicious Prosecution § 64 (1970) (“Except on proof of his actual knowledge that the charge was groundless, ... an attorney should not be held liable for the malicious prosecution of a third person if it appears that he acted with the authority of his client, solely in the interest of his client, and without knowledge of fraud, collusion, or sinister intent to injure or deceive the third party”).

In determining the existence of probable cause

[t]he important question [is not the defendant’s] belief but whether all the facts, as [the defendant] knew them or should have known, were such as to justify the ordinary, reasonably prudent, careful and conscientious person in reaching such a conclusion.

Schnathorst v. Williams, 240 Iowa 561, 577, 36 N.W.2d 739, 748 (1949). Stated another way,

there is a want of probable cause if the circumstances are such as to satisfy a reasonable [person] that the defendant had no ground for proceeding but [the] desire to injure the plaintiff.

52 Am.Jur.2d Malicious Prosecution § 52, at 218.

To establish probable cause, however, “it is not necessary that one be certain of the outcome.” Id. § 51, at 219. Rather, the test for probable cause is an objective one: probable cause exists if there are reasonable grounds for believing the suit is justified. Id. Implicit in this test is the notion that

[t]he conduct of the defendant is to be weighed in view of what appears to the defendant at the time of initiating the prior proceeding....

Id. § 64, at 226.

When deciding if a client has probable cause,

an attorney is entitled to rely in good faith upon the statements of facts made ... by [the] client, and is not under a duty to institute an inquiry for the purpose of verifying [the client’s] statement. ...

Id. § 64, at 226-27; accord Friedman, 412 Mich. at 52-53, 312 N.W.2d at 605; Murdock v. Gerth, 65 Cal.App.2d 170, 179, 150 P.2d 489, 493 (1944).

Probable cause is defined in the Restatement:

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

*262 (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.

Restatement (Second) of Torts § 675. A person initiating a civil proceeding cannot have a “reasonable belief in the existence of the facts on which the-proceedings are based” if the person knows that the alleged facts are not true. Id. at comment d. On the other hand it is enough if the existence of such facts is not certain, but the person believes their existence can be established to the satisfaction of the jury. Id.

This definition of probable cause

[а]s applied to a plaintiff’s lawyer ... 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.

Friedman, 412 Mich. at 55, 312 N.W.2d at 606. We see no practical difference between the Restatement’s definition of probable cause as applied to attorneys and the definition of probable cause we spoke of earlier.

We think the Restatement’s approach to attorney liability for malicious prosecution is sound. So we adopt the rule stated in comment d to section 674 of the Restatement. We also adopt the rule that a finding of an improper purpose must be supported by evidence independent of the evidence establishing a want of probable cause. In other words, in cases of malicious prosecution against attorneys an improper purpose may not be presumed from a want of probable cause. Our rule that malice may be presumed from a want of probable cause remains the same in all other cases.

There are a number of reasons why we think this approach is sound. First, we have already mentioned the attorney’s duty to facilitate access to the court for any person seeking legal relief and the attorney’s duty to vigorously present the client’s case. Any broad rule of attorney liability would have a chilling effect on both. As one court .wisely noted,

To create liability ... for the bringing of a weak ease, would be to destroy his efficacy as advocate of his client and his value to the court, since only the rare attorney would have the courage to take other than the “easy” case.

Berlin v. Nathan, 64 Ill.App.3d 940, 953, 21 Ill.Dec. 682, 691, 381 N.E.2d 1367, 1376 (1978), cert. denied, <