South Carolina Malicious Prosecution Lawyers

Tom Domin attorney

Our state and federal officials are charged with enforcing our laws each and every day. Our citizens have an obligation to not abuse the legal system. While most officials and citizens uphold this duty in a professional and responsible manner, cases do unfortunately arise where an official exercises poor judgment or acts unreasonably. When this happens, victims may suffer damage to reputation and suffer financial loss, such as attorney’s fees, fines and loss of income. Clawson & Staubes has experience in representing clients on claims of malicious prosecution.

What is Malicious Prosecution?

Malicious prosecution is the institution of a proceeding with malice and without probable cause. To establish a malicious prosecution case in South Carolina, a plaintiff must prove six elements: (1) institution or continuation of original civil or criminal judicial proceedings; (2) by or at the insistence of the defendant; (3) termination of the proceedings in the plaintiff’s favor; (4) malice in instituting such proceedings; (5) lack of probable cause; and (6) resulting injury or damage.

The plaintiff must have been charged with some civil or criminal wrong and been exonerated. Furthermore, the plaintiff must prove a lack of probable cause – that the facts and circumstances did not support a reasonable belief that the plaintiff was guilty of the alleged wrong. Crucially, it is only those facts known or which should have been known to the prosecuting witness at the time of the institution of the prosecution that should be considered. Lack of probable cause can be shown if the documents showing such proof are properly requested from the appropriate governmental agencies. Lack of probable cause could be shown by proving that the prosecutor had no evidence, pursued the case on very weak evidence, or even fabricated evidence. The plaintiff must also establish malice – intentional wrongful action without just cause or excuse. However, malice may be inferred where there is no probable cause.

Malicious prosecution claims can also be brought in civil lawsuits as well. These cases arise where someone is forced to defend a frivolous lawsuit brought for improper purposes. Just as in cases of criminal malicious prosecution, a defendant in a civil lawsuit can incur substantial legal fees in defending a suit, along with embarrassment, humiliation and other mental damages.

Defenses to Malicious Prosecution

There are a number of applicable defenses to the tort of malicious prosecution, including guilt of the plaintiff, good faith reliance upon fully informed counsel and government immunity. If the defendant establishes that the plaintiff was in fact guilty of the alleged wrong, it is a complete defense without regard to the existence of malice of lack of probable cause. If the defendant proves that they sought advice of legal counsel, made a full disclosure of facts to counsel and acted in good faith in reliance upon the advice of counsel then probable cause may be established. Finally, in any action against a governmental entity, the South Carolina Tort Claims Act provides the exclusive and sole remedy including limits of damages recoverable.


If a plaintiff is successful in bringing a malicious prosecution claim, he or she may be entitled to out-of-pocket damages, including attorney fees in defending the underlying case, court costs and any lost wages incurred as a result of the suit. Additionally, a successful plaintiff may be entitled to damages for emotional distress, humiliation, damage to reputation, and other “intangible” damages caused by a malicious prosecution. Punitive damages may also be recoverable. These damages can be significant under certain circumstances, highlighting the need for experienced legal counsel.

Consult with a Malicious Prosecution Attorney

If you are in need of a South Carolina or North Carolina malicious prosecution attorney, our legal team at Clawson and Staubes is available to assist you. Contact us at (843)577-2026 to learn more about our services.

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