(dissenting in part). I agree with the analysis employed and the result reached by the opinion of the Court, except for part IV which deals with a cause of action for malicious prosecution of civil proceedings.
The opinion of the majority holds that a claim for malicious prosecution may not be asserted in the absence of the element of special injury and that the plaintiff failed to plead this element of the tort. Because approval of an action for mali*70cious prosecution of civil proceedings, without requiring the element of special injury, would be appropriate and provide fair and sufficient redress to the issue presented in this case, I dissent.
A
In determining the proper elements of an action for malicious prosecution of civil proceedings, our Court today is not bound by explicit decisions that require assertion of the element of special injury. The scholarly opinion of my colleague most appropriately recounts the history of the "English rule” and the split in American jurisdictions between adoption of that rule and the "American rule” relating to a cause of action for malicious prosecution.
In Michigan, our decisions reveal that this Court has not distinctly recognized a cause of action for malicious prosecution without special injury. Likewise, the cases cited in my colleague’s opinion do not indicate a specific adoption by this Court of the "English rule” with its special injury requirement or a specific rejection of the "American rule”, which allows recovery without a showing of special injury.
In this regard, in avoidance of an explicit determination, our Court in Brand v Hinchman, 68 Mich 590; 36 NW 664 (1888), previously expanded the concept of special injury by approving a cause of action involving a technical taking and possession of a plantiffs property. Justice Morse, the author of Brand, expressed his individual opinion that recovery should not be limited to a showing of special injury. The other Justices, however, deemed such a holding not necessary to decision.
In Powers v Houghton, 159 Mich 372; 123 NW *711108 (1909), this Court recognized that the "English rule” had been modified and the definition of special injury was broadened in American jurisdictions. In Powers, the plaintiff sought "to recover damages for the malicious prosecution of a civil action, by which he was deprived of neither his liberty, reputation, nor property, but simply of the possession of property belonging to another”. 159 Mich 373. The Court reversed a judgment in favor of the plaintiff on the narrow ground that it was "unable to find a single adjudicated case * * * where it is held that the defendant in a replevin suit, having no property in the goods taken, may maintain an action for malicious prosecution against the unsuccessful plaintiff in the original action”. 159 Mich 374. Whether Michigan followed the special injury requirement or the broader view espoused by Justice Morse remained undecided. Cases following Brand and Powers all involved situations that fit into a somewhat expanded concept of special injury.1 Thus, it appears we are left *72today without a specific adoption or rejection of the special injury requirement.
The duty to interpret the common law in light of present circumstances and changed conditions rests with this Court. Even if the special injury condition may be considered to be a part of our jurisprudence, this Court may abrogate common-law rules.2 Today, this Court is presented with the opportunity to adopt or reject the special injury requirement in Michigan law.
B
Admittedly, the special injury condition of the "English rule” limits the recovery potential for malicious prosecution of civil proceedings and thereby protects the right of free access to the courts. However, the limitation is too broad. Suits arising out of meritorious as well as vexatious actions are disallowed. The special injury requirement is not logically related to the actual damages incurred by the defendant as a result of a frivolous suit. The injury to reputation or business flowing from any defamatory matter alleged as the basis of the proceedings,3 and the expense of defending a *73lawsuit which was brought without probable cause and for an improper purpose do not depend upon a technical interference with person or property. The storekeeper whose property is attached for a few moments certainly suffers no greater injury or harm than the individual whose reputation is tarnished or who suffers a loss of business as a result of a truly vexatious lawsuit.
Furthermore, the requirement of an arrest or seizure of property is in large part an anachronistic one. At an earlier time many actions could be commenced by a writ of capias ad respondendum. That writ permitted a civil action to be started by the arrest of the defendant. See Black’s Law Dictionary (4th ed), p 262. In Michigan certain contract actions and apparently all tort actions could, upon a proper declaration and affidavit, be started by a writ of capias ad respondendum. Kirker v Larson, 254 Mich 648; 236 NW 896 (1931). RJA § 1815 abolished this writ and provides that "no civil actions shall be started by arrest”. Civil arrest is now a limited concept and rarely applicable. See 35 MCLA, RJA Practice Commentary, pp 238-240, Committee Comment, pp 240-242.
The law concerning attachment and garnishment has also changed. See Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972). The Legislature has abolished, in most situations, attachment and garnishment as prejudgment security devices. 1974 PA 371.
Thus, the likelihood of special injury, as defined by the majority, occurring in a lawsuit brought today is greatly reduced. The element of special injury is now likely to occur in only a limited class and number of cases.
The views of Justice Morse written almost a century ago are pertinent today:
*74"The common law declares that for every injury there is a remedy. Especially is this so where the injury is malicious. If a man is injured in his credit and reputation, and his business lessened or broken up, it can make no difference, in his right to recover for such injury, that his person or property has not been manually seized or disturbed.” Brand, supra, 597-598.
C
The strict requirements of lack of probable cause and malice, i.e., improper purpose, are more appropriate guardians of free access to the courts and of promoting the honest use of the judicial process than the artificial requirement of special injury. The elements of the tort of malicious prosecution of civil proceedings include:
1. A civil proceeding instituted, continued or procured by one person against another.
2. Termination of the proceeding in favor of the person against whom it is brought, except for an ex parte proceeding.
3. Absence of probable cause for bringing or continuing the proceeding.
4. Malice or a primary purpose other than that of securing the proper adjudication of the claim on which the proceeding is based.
5. Proof of injury resulting in damages.4
Many American jurisdictions,5 commentators,6 *75the American Law Institute7 and amicus State Bar of Michigan recognize that the elements of lack of probable cause and malice provide the necessary protection to attorneys and litigants seeking access to the judicial system, while, at the same time, they allow proper redress for vexatious litigation.
The instant case involves a suit against the opposing attorneys in an earlier malpractice action. Attorneys are the agents who provide the necessary expertise for clients who wish to litigate their rightful claims. Lawyers have an obligation to aid laypersons in obtaining access to the courts. The delicate relationship among attorneys, clients, and our judicial system requires careful definition of the elements of absence of probable cause and improper purpose when attorneys are sued for malicious prosecution.
The American Law Institute supplies an appropriate basic standard to determine probable cause:
"One who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he *76reasonably believes in the existence of the facts upon which the claim is based, and either
"(a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law, or
"(b) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information.” (Emphasis added.) 3 Restatement Torts, 2d, § 675, pp 457-458.
This standard of reasonable belief is applicable to the attorney for a plaintiff. Probable cause will be found for bringing or continuing the original action unless counsel proceeded with the knowledge that the client’s claim had no factual or legal basis. There should be no requirement that an attorney investigate a claim if the lawyer could reasonably believe the facts to be as alleged by the client. The decision to forego adopting a general obligation for reasonable investigation is guided by a lawyer’s duty to the profession and his or her client. "A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.” Code of Professional Responsibility and Canons, Canon 2. In complying with this canon an attorney should be prepared to represent clients with doubtful, but tenable, claims. "A lawyer should represent a client zealously within the bounds of the law.” Canon 7.
Futhermore, an attorney must not be required to expend substantial funds to investigate every case upon the threat of being held liable in a subsequent suit for wrongful use of civil proceedings. This threat of liability must not force an attorney to choose between advancing substantial costs for a client with a tenable and meritorious, but less than solid, claim and refusing to take a *77case with some merit, but with potentially high costs.8
To enhance free access to our courts for litigants and attorneys to bring tenable claims which, for example, may seek to expand the common law, it is necessary in actions for malicious prosecution of civil proceedings, as in actions for malicious (criminal) prosecution, to carefully delineate the functions of judge and jury, particularly in determining probable cause.
"The respective functions of court and jury in actions for malicious prosecution differ in one important particular from their respective functions in other actions of tort in which, as in actions for negligence, the liability of the defendant depends upon the unreasonable character of his conduct. In passing upon this question someone must determine what the defendant did or failed to do and the circumstances under which his act or omission occurred; and someone, either court or jury, must determine whether, in the light of these circumstances, his conduct measured up to the standard of a reasonable man. In actions for negligence and other tort actions in which the liability of a defendant depends upon the unreasonable character of his conduct, both of these matters are determined by the jury * * *.
"In actions for malicious prosecution, however, upon the [issue] of * * * probable cause, the jury has only the function of finding the circumstances under which the defendant acted. The court determines whether, under those circumstances, * * * the defendant had or had not probable cause. If there is no conflict in the testimony as to what the circumstances were, the court has no need for a finding of the jury. The jury is not called upon to act unless there is a conflict in the *78testimony that presents an issue of fact for its determination.
* # *
"The better * * * method [in determining the issue of probable cause] is to require the jury to find a special verdict setting forth the circumstances under which they find that the proceedings were initiated. Upon these findings the court then determines whether the defendant had probable cause.”9
Thus, the jury resolves any conflict in the underlying facts on the issue of probable cause. Once the conflict is resolved, the judge determines whether the facts as found by the jury constitute probable cause. If the facts underlying an attorney’s reasonable belief are not in dispute, the judge decides the issue of probable cause.
The element of improper purpose must also be appropriately defined. When a party is sued for malicious prosecution, a jury may infer malice from an absence of probable cause. See, e.g., Renda v International Union, UAW, 366 Mich 58, 99-100; 114 NW2d 343 (1962). To permit a jury to infer malice or improper purpose may be appropriate when the defendant is a layperson. However, as explained in 3 Restatement Torts, 2d, § 674, comment d, p 453, it is necessary to make an independent determination of improper purpose when the defendant is the attorney who initiated the original action:
"An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see § 675); and even if he has no probable cause *79and is convinced that his client’s claim in unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676.) An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.” (Emphasis added.)
The lawyer’s duty to press his client’s claim requires this independent evaluation of improper purpose.10
For these reasons, the requirement of special injury should be eliminated. The requirements of lack of probable cause and improper purpose coupled with the respective functions of judge and jury strike a proper balance between unfettered access to the courts for those with tenable claims and the need to redress the harm caused by an abuse of our judicial system.
D
As an alternative to a malicious prosecution claim, an ancillary proceeding to occur immediately after judgment in the original action is suggested in a concurring opinion. Such a proposal would offer the advantages of control, availability and efficiency.
However, it may also be anticipated that this procedure could create the potential of adding an ancillary issue to every lawsuit, increase docket congestion, precipitate a conflict of interest between attorney and client, and grant too much power to the trial judge, thereby placing a pre*80mium on "judge shopping”. The ease of accessibility of such a procedure may increase the likelihood of the prevailing party filing an ancillary proceeding. It could encourage, without reflection or thought, retaliatory claims. Also, since this alternative suggestion would apply to defendant and plaintiff alike, it raises an issue concerning the concept of what is an appropriate defense.
These comments are made only for the purpose of raising initial questions regarding the suggested alternative. This case, nevertheless, raises an issue of significance that should be determined on its own merits.
This case, therefore, should be remanded to the trial court. The trial court erroneously ruled that the denial of the motion for costs pursuant to GCR 1963, 111.6 in the prior malpractice action determined the question of probable cause. The trial court did not rule upon the question of the factual dispute.
Accordingly, I would affirm the judgment of the Court of Appeals and remand this cause for further proceedings not inconsistent with this opinion.
E.g., Krzyszke v Kamin, 163 Mich 290; 128 NW 190 (1910) (injunction), Rowbotham v Detroit Automobile Inter-Ins Exchange, 69 Mich App 142; 244 NW2d 389 (1976) (deprivation of automobile operator’s license).
The Michigan cases discussed in the majority opinion involve some special injury equivalent to a seizure of or interference with property. Other jurisdictions add to the arrest or seizure of property elements of the definition of special injury some other special injury "not necessarily resulting in any and all suits prosecuted to recover for like causes of action”. Schwartz v Schwartz, 366 Ill 247, 250; 8 NE2d 668 (1937). See also Ring v Ring, 102 RI 112; 228 A2d 582 (1967); Buck v Gale, 271 Or 90; 530 P2d 1248 (1975); Brody v Ruby, 267 NW2d 902 (Iowa, 1978).
Plaintiff Friedman’s complaint states:
"That as a direct and proximate result of the negligence, malicious prosecution and abuse of process of these defendants, the plaintiff, Seymour Friedman, M.D., has endured grievous damages, including, but not limited to, the following: the cost of defending the aforesaid cause and the appeal, an increase in his annual malpractice insurance premiums for so long as he practices medicine, the loss of two young associates from his office who could no longer afford to pay the increased malpractice insurance premiums thereby requiring him to *72work excessive hours without relief, damages to his reputation as a physician and surgeon, embarrassment and continued mental anguish.”
The majority holds that the complaint does not allege special injury. Cf. Mills County State Bank v Roure, 291 NW2d 1 (Iowa, 1980) (loss of medical practice or business income sufficiently alleges special injury).
"[T]he general rule is that the common law prevails except as abrogated by the Constitution, the Legislature or this Court. Const 1963, art 3, § 7.” People v Aaron, 409 Mich 672, 722; 299 NW2d 304 (1980).
Even if the “English rule” has been the common law in Michigan, it should be abrogated. Legal scholars and historians are left to decide whether the pure "English rule”, a modified "English rule”, or some other rule, if any, stated the common law in this jurisdiction.
3 Restatement Torts, 2d, § 681(b), p 469.
See Prosser, Torts (4th ed), § 120, pp 850-856; 3 Restatement Torts, 2d, §§ 674, 681, pp 452, 469. The Restatement term for this tort is wrongful use of civil proceedings.
The instant case does not present the issue of "wrongful defense” of civil proceedings. The determination of that issue should be made in the proper case or within the rule-making process of this Court. However, a counter-plaintiff should be subject to the same standards as a plaintiff.
See, e.g., 52 Am Jur 2d, Malicious Prosecution, § 10, p 193. See also fn 24 of the majority opinion.
E.g., Prosser, Torts (4th ed), §120, p 851; Birnbaum, Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medi*75cal Malpractice Actions, 45 Fordham L Rev 1003, 1090 (1977); Jennings, Comment, Promoting Recovery by Claimants in Iowa Malicious Prosecution Actions, 64 Iowa L Rev 408, 418 (1979). See Kisner, Note, Malicious Prosecution: An Effective Attack on Spurious Medical Malpractice Claims?, 26 Case Western Reserve L Rev 653, 662 (1976).
3 Restatement Torts, 2d, § 674, comment e, pp 454-455:
"[I]n order to recover under the rule stated in this Section, the plaintiff must prove something more than the mere fact that the civil proceedings have been initiated without probable cause and for an improper purpose and have terminated in his favor. He must show either material harm or the violation of a legal right that is in itself sufficient to support an action for damages. Among the latter are the imprisonment of the person against whom the proceedings are brought, the deprivation of his possession of land, chattels or intangible things, or the harm to his reputation, assumed to result from the defamatory nature of the facts alleged as the basis of the proceedings against him. Among the material harms are the harm resulting from the interference with the use, enjoyment or vendibility of his land, chattels or intangible things, and the expenditures reasonably necessary to defend himself against the proceedings.”
Code of Professional Responsibility and Canons, DR 5-103(B) per- ' mits an attorney to advance the costs of litigation if the client remains ultimately liable for the costs. In a medical malpractice case the expense of investigation and obtaining expert evaluations is often a substantial burden. Whether these costs are expended should be determined by the requirements of developing the case, not by the threat of a later lawsuit.
3 Restatement Torts, 2d, § 673, comment e, pp 449-450. See also § 681B, pp 472-473. Michigan cases have required careful instruction to the jury concerning probable cause. E.g., Wilson v Bowen, 64 Mich 133; 31 NW 81 (1887).
A contingent-fee arrangement is not an improper purpose. 3 Restatement Torts, 2d, § 674, comment d, p 453.