concurring in part; dissenting in part.
I concur with the conclusions reached by the majority, except the reversal of the judgment for malicious prosecution because of the trial court’s instruction relating to defendants’ reliance on the advice of counsel. I would affirm that part of the judgment, reverse the judgment on abuse of process and modify the judgment accordingly; therefore, I dissent.
The trial court instructed the jury:
“You’re instructed that the defendant — you’re instructed that where one fully, fairly and truthfully disclosed all of the pertinent facts of which he has knowledge or which he could obtain knowledge, with a reasonable diligence to his attorney and seeks the advice of his attorney in good faith and from honest motives, and then in good faith follows the advice of *525his attorney and files a criminal charge for a proper purpose, then you as jury may find the advice of his attorney to be a defense to the charge that the action was brought without probable cause or that he brought it with malice.”
Good faith reliance on the advice of counsel was first enunciated in Oregon in Hess v. Oregon Baking Co., 31 Or 503, 515, 49 P 803 (1897), in which the court said:
“* * * [W]here one seeking in good faith the advice of a public prosecuting officer about the commencement of a criminal prosecution, discloses to such officer all the facts and circumstances within his knowledge, or which he has reasonable ground to believe, relating to the offense, and is advised by that officer to institute the prosecution, his defense of probable cause will be established if he acted in good faith upon such advice, even though there were other exculpatory facts which he might have ascertained by diligent inquiry. He is bound to make a full and fair disclosure of all the material facts within his knowledge; and, if he has reason to believe that there are other facts bearing upon the guilt or innocence of the accused, he must either disclose that belief to the prosecuting attorney, or himself make inquiry to ascertain the facts in relation to the matter, but more than this he is not required to do. He is not required to institute a blind inquiry to ascertain whether facts exist which would tend to the exculpation of the party accused. If he honestly believes that he is in possession of all the material facts, and makes a full, fair, and candid statement of them to the prosecuting officer, and acts in good faith on the advice of that officer, he ought to be protected. * * *.” (Emphasis supplied.)
That statement of the rule appears to have been followed, at least until Lampos v. Bazar, Inc., 270 Or 256, 527 P2d 376 (1974). See Drake v. Anderson, 215 Or 291, 197-98, 334 P2d 477 (1959). Hess did not require a defendant to investigate further unless he had reason to believe that there were other facts bearing on the guilt or innocence of the accused. In Lampos, the court modified that rule1 to conform *526to that stated in Prosser, Law of Torts 842, § 119 (4th ed 1971): When a reasonable person would investigate further before beginning the prosecution, he may be liable for a failure to do so. After accepting that statement of the rule, the court said:
“If defendant had a duty to make a further investigation before having plaintiff arrested, it would follow that in doing so without further investigation defendant acted without probable cause. As previously stated, the question of probable cause is a question of law for the court when the facts are undisputed. Upon application of the test as stated in Prosser to the undisputed facts of this case, as also previously stated, we believe that a reasonable man, acting under such facts as then known to Falk and Allen, would have made a further investigation before causing plaintiff to be charged with a felony.” 270 Or at 269.
Having so stated, the court, nevertheless, went on to discuss the defendant’s contention that its good faith reliance on the advice of counsel was conclusive on the issue of probable cause. The court said that it was a question of fact for the jury whether the defendant had made a full and fair disclosure to the district attorney of the facts known to it at that time, and concluded that part of the inquiry:
“If the jury found that Mr. Falk and Mr. Allen had made a full and fair disclosure to the district attorney defendant might have been relieved of any duty to make any further investigation of its own. * * *” 270 Or at 270. (Emphasis supplied.)
So far, the court seems to have said two distinct and possibly inconsistent things: (1) Under the undisputed facts in that case, the defendant had a duty to investigate further and, therefore, it acted without probable cause as a matter of law, because it did not do so. (2) With respect to the defendant’s contention that it acted in good faith on the advice of counsel, if the jury could find that the defendant had made a full and fair disclosure to the district attorney, the defendant might have been relieved of any duty to make any further investigation of its own. It could be argued that both propositions cannot be valid. If, as a matter of law, the defendant had a duty to investigate further and did not do so, the court, which has the duty to determine whether the defendant had probable cause to initiate the criminal proceedings, would be required *527to decide that the defendant had acted without probable cause as a matter of law. That proposition makes sense, regardless of the defendant’s contention that it relied in good faith on the advice of counsel, because, obviously, if the defendant did not investigate further when it had a duty to do so, it could not have related additional facts that would have been discovered, and the defendant could not have made a full and fair disclosure to the attorney.
The possible inconsistency appears to be resolved by the court in discussing certain jury instructions which the defendant had assigned as error. The trial court had instructed the jury concerning the defendant’s duty to make such an investigation as would have been made by a reasonably prudent person in the same or similar circumstances. The defendant’s objection was that there was no duty to investigate. The court’s response was that, under the undisputed facts of that case, as known to the defendant at the time it caused the plaintiffs arrest, a reasonable person would have made a further investigation before doing so; therefore, the instruction leaving that question to the jury was improper.
The trial court, after instructing on the duty to investigate, prefaced its instruction on the defendant’s good faith reliance on advice of counsel with the statement: “If you find that the defendant made an investigation of the kind I have heretofore described to you * * 270 Or at 275. The defendant excepted to the prefatory phrase, contending again that there was no prior duty to investigate. The court’s response was that, as a matter of law, a reasonable person under the circumstances of that case would have made a further investigation; however, if the defendant had made a full and fair disclosure to an attorney and had acted in good faith on the attorney’s advice, it may have been relieved of any duty to make a further investigation. The Supreme Court held that the instruction was improper, because it gave the impression that a defendant must always make an investigation before he is entitled to rely on the advice of counsel, and said that it would have been preferable to instruct that further investigation is not necessary when the defendant informs the attorney of the state of his information and is assured that he *528need not seek to learn anything more, citing Prosser, supra, at 843.2
The court in Lampos reversed a judgment for the plaintiff because of the instructions mentioned above. If the court had meant what it said when it stated that the defendant had a duty to investigate and that, because it had failed to do so, it acted without probable cause, the objectionable instructions would have been harmless. Therefore, the court must not have meant that. I believe that the net result of the rules relied on and the holding is that, even though the defendant had a duty to investigate further and did not do so, the jury could find that the defendant had relied in good faith on the advice of counsel after disclosing all of the material facts it had and was assured that it need not investigate further. I recognize that my attempted synthesis would mean that, even though the defendant did not, as a matter of law, have probable cause, it could avoid liability if an attorney assured it that further investigation was unnecessary. On the other hand, if there is no evidence that the attorney gave the defendant the required assurance, the advice of counsel is no defense, or at least may not be a defense.
If that is the rationale of Lampos, the rule as articulated in Hess v. Oregon Baking Co., supra, has been modified substantially.
In this case, the two complaints of plaintiffs alleged violations were solicited by the defendants, who were making a general investigation of plaintiff. The complaint from Guggenmos was triggered by a telephone call to defendant Sparks from one of her neighbors, who complained about some aspect *529of plaintiffs having drilled a well for her at about the same time that plaintiff had drilled a well for Guggenmos. We do not know what the neighbor’s complaint was or what, if anything, developed from it. However, that call triggered Sparks’ call to Guggenmos, in which he asked her when plaintiff had drilled her well. She said she would have to check her calendar, which she did, and then said that she “got water” on a certain date, which was during plaintiffs earlier suspension period.
Sparks testified that he understood that response to mean that plaintiff had hit water while drilling a well on that date and, therefore, he was drilling during his suspension period. At Sparks’ request, she wrote on a slip of paper that plaintiff had started drilling her well “about October 3,1981, and hit water on the 6th day of November.” If plaintiff was drilling after November 1, he was in violation of his suspension. Immediately before that case was to be tried, she advised defendant that she had made a mistake, that the latter date was the date that she got water in her house. It is not clear whether either Sparks or Leeds made any further investigation of that matter, either by going over the facts with Guggenmos in person or by inquiring of plaintiff. At one point, Leeds indicated that he had called Guggenmos several times before issuing a citation; however, the information he got was quite confusing.
With respect to the Allen case, defendants had solicited a letter from Allen stating the manner in which plaintiff had grouted a wellhead for Allen’s son. If the wellhead had been grouted as charged, it would have been a violation of the law. Although it is not clear from the record when defendants attempted to investigate that charge, the record reflects that they did, at some point, attempt to determine at the site of the wellhead whether it had been properly grouted, but had been driven away by mosquitoes. They did not return.
The only attorney who testified for defendants was the attorney assigned to the department. He testified that he advised defendants that they could proceed against plaintiff either civilly or criminally and that if they proceeded against him criminally, it would be their job to talk to the witnesses and give the information to the district attorney. He agreed *530that, if defendants had failed to do that, they would not have been following his advice. Again, that testimony is not completely clear, except that it is clear that defendants were not assured that they need not investigate further; if anything, they needed to do more.
In my opinion, the undisputed facts establish that defendants had a duty to investigate the correctness of the facts contained in the brief, unsworn, unsubstantiated written statements before charging plaintiff with criminal acts. Not only was plaintiff required to face those charges, the mere filing of them resulted in the immediate suspension of his licenses. The two written statements that defendants had in their possession, if correct, indicated that plaintiff had violated the law in both cases. I have no doubt that an attorney, shown those letters and nothing more, would have advised defendants that criminal charges were appropriate. A reasonable person, however, would have investigated to determine whether the alleged facts were correct. Although there is some evidence of attempts to investigate, it was a jury question whether the investigation was reasonable under the circumstances. There is no evidence that defendants were assured by an attorney that they need not investigate further.
The instruction given included the requirement that one who claims to rely on the advice of counsel must disclose to his attorney all of the pertinent facts of which he has knowledge or of which he could obtain knowledge with reasonable diligence. In this case, that was appropriate, although not as complete as it should have been. It went on to instruct that, if that was done and if defendants in good faith followed the attorney’s advice, then the jury “may” find the advice of the attorney to be a defense. Defendants’ only objection to the instruction was that it should have said “must” instead of “may.”
That objection is not well taken, if my understanding of Lampos is correct. The problem with the instruction is that it does not state that defendants were not required to investigate further if they were assured by the attorney that they need not do so. However, the instruction permitted the jury to find for defendants without their having been so assured, which I believe is more favorable to defendants than a correct *531instruction would have been. Not only was defendants’ objection not well taken, they were not prejudiced by the instruction that was given.
The jury found in favor of plaintiff on both the malicious prosecution and the abuse of process claims and assessed his total money damages in the amount of $75,000, which was not segregated between the two claims. Plaintiff agreed at oral argument that, if we reversed the judgment for abuse of process, it would be appropriate to reduce the judgment by $20,000, because his prayer in the abuse of process claim was for $20,000. Accordingly, I would reduce the judgment by that amount and remand for the entry of a judgment for $55,000.
In his concurring opinion, Judge Warren misunderstands the thrust of this dissent. I have no quarrel with that opinion’s statement of the function of the court and jury. The problem is that neither the majority nor the concurring opinions make any effort to analyze Lampos to determine whether defendants’ objection to the court’s instruction was well taken. Unless we view all of the discussion in Lampos as a puff of smoke, that case changed the law on the right to rely on the advice of counsel.
The language quoted by the court is:
“ * * [T]he defendant must have made full and fair disclosure to the attorney of everything within his knowledge and information which a reasonable man would regard as material for the attorney to know in order to give a sound opinion; and the failure to disclose any such information, or false statements to the attorney will prevent any justifiable reliance on the advice given. Some courts have gone further, and have required that the defendant use the diligence of a reasonable man to ascertain anything that he does not know before consulting counsel, but the prevailing view, which seems the better one, is that this is unncessary where he informs the attorney of the state of his information and is assured that he need not seek to learn anything more.’ ” Lampos v. Bazar, Inc., supra, 270 Or at 276.