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AMI415Defense—Malicious Prosecution—Acting Upon the Advice of Counsel

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 415
Arkansas Model Jury Instructions-Civil
November 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 4. Intentional Torts and Defamation
AMI 415 Defense—Malicious Prosecution—Acting Upon the Advice of Counsel
(Defendant) contends and has the burden of proving that prior to the initiation of the [civil proceeding][criminal prosecution][he][she][it] presented to an attorney a full, fair, and truthful disclosure of all facts known to [him][her][it], and that [he][she][it], in good faith, relied upon the advice of such attorney, in commencing such [civil proceeding][criminal prosecution].
[If you find from a preponderance of the evidence in this case that this has been proved, then your verdict should be for (defendant)].
NOTE ON USE
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.
COMMENT
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.
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