Can an attorney be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause?

To prevail on a malicious prosecution claim, plaintiff must show the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice. ( Soukup , supra , 39 Cal.4th at p. 292, 46 Cal.Rptr.3d 638, 139 P.3d 30.) "[A]n attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause." ( Zamos v. Stroud (2004) 32 Cal.4th 958, 970, 12 Cal.Rptr.3d 54, 87 P.3d 802 ( Zamos ).)

"The question of probable cause is whether, as an objective matter, the prior action was legally tenable or not. [Citation.] A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him. [Citation] In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim. " ( Soukup , supra , 39 Cal.4th at p. 292, 46 Cal.Rptr.3d 638, 139 P.3d 30.) Thus, " probable cause is lacking "when a prospective plaintiff and counsel do not have evidence sufficient to uphold a favorable judgment or information affording an inference that such evidence can be obtained for trial." " ( Morrison v. Rudolph (2002) 103 Cal.App.4th 506, 512, 126 Cal.Rptr.2d 747, overruled in part on other grounds in Zamos , supra , 32 Cal.4th at p. 973, 12 Cal.Rptr.3d 54, 87 P.3d 802.)

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