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3.13-9  Defense of Good Faith Reliance Upon Advice of Counsel1

Revised to January 1, 2008

Under our law, a defendant in a vexatious suit action has a complete defense to that action if (he/she) can prove by a fair preponderance of the evidence that (he/she) instituted the underlying civil (action/proceeding) against the plaintiff in good-faith reliance upon the advice of legal counsel, given to (him/her) after (he/she) has made a full and fair statement to such counsel of all facts (he/she) then knew or should have known concerning the basis for the underlying action.  The fact that counsel's advice was unsound or erroneous will not affect the result.2  This defense is designed to protect the interests of common citizens who, unschooled in the law, would otherwise be forced to put themselves at great financial risk every time they resorted to the courts to assert their legal rights.3

Consistent with this purpose, the defense has five essential elements which the defendant, <name of defendant>, must prove by a fair preponderance of the evidence if (he/she) is to prevail upon it in this case:

  1. That (he/she) consulted with legal counsel about (his/her) decision to commence and prosecute the underlying civil (action/proceeding).

  2. That (his/her) consultation with legal counsel was based upon a full and fair disclosure by (him/her) of all facts (he/she) then knew or should have known concerning the basis for the underlying (action/proceeding).  No person can justifiably rely upon advice that (he/she) knows or should know to be untrustworthy due to (his/her) own failure to disclose relevant information to the person giving the advice.

  3. That the lawyer to whom (he/she) turned for advice was one from whom (he/she) could reasonably have expected to receive an accurate, impartial opinion as to the viability of the underlying (action/proceeding) against <name of plaintiff>.4  Thus, although all lawyers are officers of the court, who are bound by their oaths "not knowingly [to] maintain or assist in maintaining any cause of action that is false or unlawful,"5 the law recognizes that they too are people whose judgment may sometimes be clouded by their personal allegiances, sympathies and prejudices.  Where, then, a person claims that (he/she) has relied upon the advice of counsel for (his/her) decision to commence and prosecute an action or proceeding against another person, (he/she) must show that (his/her) counsel was one (he/she) could fairly have presumed to be unbiased and unprejudiced against that other person6

  4. That, having sought such advice, (he/she) relied upon it.  If (he/she) did not, then of course (he/she) has no defense even if counsel was consulted.

  5. That (his/her) reliance on counsel's advice was made in good faith.

As used in the defense of good-faith reliance upon the advice of counsel, good faith is the genuine belief that one's underlying (action/proceeding) was fully justified, both in law and in fact.

<At this point, briefly summarize the claims of the defendant and the countering positions of the plaintiff on each contested element of the special defense.  Be certain to emphasize, in so doing, that the defendant has the sole burden of proof with respect to each such essential element.>

If, at the end of your deliberations, you unanimously find that <name of defendant> has proved each essential element of this defense by a fair preponderance of the evidence, then you must return a defendant's verdict on the plaintiff's claim of vexatious suit.
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1 Taken generally from Spear v. Summit Medical Center, Inc., Superior Court, judicial district of Hartford, Docket No. CV 92 0525939 (April 16, 1998) and the authorities cited and analyzed therein.

2 Brodrib v. Doberstein, 107 Conn. 294, 296-97 (1928); Smith v. King, 62 Conn. 515 (1893).

3 Spear v. Summit Medical Center, Inc., Superior Court, judicial district of Hartford, Docket No. CV 92 0525939 (June 17, 1996).

4 Verspyck v. Franco, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0178234 (December 20, 2002); Evans v. Testa Development Associates, Superior Court, judicial district of Hartford, Docket No. CV 01 0806425 (March 26, 2002) (31 Conn. L. Rptr. 535, 536).    

5 General Statutes § 1-25.

6 Brodrib v. Doberstein, supra, 107 Conn. 297.

Authority

Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84 (2007); Verspyck v. Franco, 274 Conn. 105, 112 (2005); Vandersluis v. Weil, 176 Conn. 353, 361 (1978); Brodrib v. Doberstein, 107 Conn. 294, 296-97 (1928); Smith v. King, 62 Conn. 515 (1893).
 


 

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