AMI 415 Defense—Malicious Prosecution—Acting Upon the Advice of Counsel

Use this instruction where the defense of acting upon advice of an attorney in initiating the prior proceedings is interposed as a defense.

Do not use the bracketed sentence if the case is submitted on interrogatories.

Where a defendant's conduct is alleged to be tortious by the continuation, rather than the initiation, of a civil proceeding or a criminal prosecution, and where the defendant contends that such continuation was based upon advice of counsel, the language of this instruction should be appropriately modified.

This instruction is a correct statement of the law. Harold McLaughlin Reliable Truck Brokers, Inc. v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996); Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990); Kellerman v. Zeno, 64 Ark. App. 79, 983 S.W.2d 136 (1998). “The rule that affords a defense to an action for malicious prosecution for one who has acted on the advice of counsel applies with greater force if the proceeding was instituted on the advice and approval of the state's prosecuting attorney.” Patrick v. Tyson Foods, Inc., 2016 Ark. App. 221, 14; see also Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931) (finding that defendant was entitled to defense where undisputed evidence showed that defendant acted in good faith by disclosing all facts in its possession to its personal attorney and the prosecuting attorney).

Where evidence is in conflict, it is for a jury to determine both what facts were known to defendant, and whether those facts were completely and impartially presented to the attorney. Kellerman, supra.