Can Lawyers Get Away With Anything? Court Declares the Dragonetti Act Unconstitutional

Generally, Pennsylvania attorneys’ actions are governed by the Pennsylvania Rules of Professional Conduct. However, if an attorney abuses process by filing and maintaining a lawsuit that was either grossly negligent or without probable cause, the attorney can also be held liable in a civil court under what’s known as the Dragonetti Act, 42 Pa. C.S.A. § 8351.

The standard to hold an attorney liable is high. Not only does one have to file and maintain a lawsuit that was either grossly negligent or without probable cause, but it also has to terminate favorably on the merits. This means you can go through years of frivolous litigation with little to no recourse. More often than not, litigants get burned out from incurring legal fees, and simply settle the case rather than take a chance on recovering their fees in a Dragonetti Action.

Nevertheless, and despite it’s high burdens, the Dragonetti Act is particularly important because Pennsylvania does not have an anti-SLAPP statute.

However, the Chester County Court of Common Pleas declared that the Dragonetti Act is unconstitutional as it applies to attorneys. The Honorable Judge Edward Griffith dismissed a wrongful-use action on grounds that the legislature was without authority to enact the Dragonetti Act since the Pennsylvania Constitution gives the judiciary the exclusive power to regulate the conduct of attorneys, as held in Villani v. Seibert, No. 2012-09795 (Chester Co. C.C.P. Aug. 27).

According to the Legal Intelligencer, Judge Griffith explained that under the Dragonetti Act, an attorney who participates in civil proceedings is liable “if he acts in a grossly negligent manner or without probable cause and primarily for a[n improper] purpose.” Under the act, an attorney has probable cause if she “reasonably believes” that based upon the facts supporting the underlying claim, the action may be valid under “existing or developing law.”

On the other hand, the Rules of Professional Conduct allow an attorney to pursue a claim if he has a “good faith argument for an extension, modification or reversal of existing law.” Griffith explained that the Rules of Professional Conduct “regulate the same behavior; they instruct a lawyer on the types of claims that may be brought.” Griffith also explained that the Rules of Professional Conduct provide broader protection to attorneys than the Dragonetti Act, because under the rules, attorneys are permitted to advocate for the “extension, modification or reversal of existing law,” a less restrictive standard than that contained in the act. Judge Griffith certified the matter for an interlocutory appeal.

Notably, what Judge Griffith did not address is the fact that Pa.R.C.P. 1023.1 (the Pennsylvania equivalent to a Rule 11 motion for sanctions) explicitly states that “[t]he following provisions of the Judicial Code, 42 Pa.C.S., provide additional relief from dilatory or frivolous proceedings: (1) Section 2503 relating to the right of participants to receive counsel fees and (2) Section 8351 et seq. relating to wrongful use of civil proceedings.”

In my view from a constitutional perspective, the Pennsylvania Supreme Court explicitly recognized that the legislature has provided a remedy for victims of frivolous lawsuits beyond filing a motion for sanctions or a bar complaint. To me, that suggests that the Supreme Court fully intended for there to be a private cause of action against attorneys outside of the Rules of Professional Conduct and the Rules of Civil Procedure.

From a pragmatic perspective, motions for sanctions are rarely granted. In addition, the Pennsylvania Disciplinary Board does not have the resources to investigate every claim of frivolous litigation, and disciplining the lawyer and even ordering restitution may not make the victim whole. If the Dragonetti Act is overturned, victims of frivolous litigation which the lawyer was responsible for may be left without a remedy that makes them whole.

How is that fair?

4 Responses to Can Lawyers Get Away With Anything? Court Declares the Dragonetti Act Unconstitutional

  1. Linda Powell says:

    In a medical malpractice case in 2005, the District Court Judge had stated that an attorney can’t be found guilty in a Dragonetti action, even if he knew that the chances of winning the case were “comparatively slight”. Such reservations on the act can prevent it from being used but declaring it entirely unconstitutional is definitely not in the interest of justice.

  2. A lawyer who understands this subject says:

    I disagree for multiple reasons, including the following:

    FIRST, the Pennsylvania Constitution provides in Article V, section 10(c) that governing attorneys is the sole province of the Supreme Court. Based on this provision, the Court has entered no fewer than six decisions striking down statutes that purport to govern attorney conduct. See, e.g., Beyers v. Richmond, 937 A.2d 1082 (Pa.2007) (collecting cases). The Dragonetti Act is no different; it violates the separation of powers doctrine embodied in Article V, section 10(c). Whether or not the Act serves some valuable purpose is beside the point; the legislature has no authority to pass legislation on this subject. Virtually every statute is defensible on some policy ground, but as the Villani case shows, that does not make the statute constitutional.

    SECOND, the comment to Pa.R.Civ.P. 1023.1 cannot trump the Constitution.

    THIRD, the comment actually remains correct to the extent it indicates that NON-attorneys are subject to liability under the Dragonetti Act. But like I said above, the comment cannot override the Constitution’s prohibition against legislation governing attorneys’ conduct.

    FOURTH, while the Dragonetti statute is unconstitutional, there still exists one common law remedy against attorneys (abuse of process). Moreover, under Article V, section 10(c), the Supreme Court has the power to create a second, prospective common law action against attorneys for wrongful use of civil proceedings. See Restatement (Second) of Torts, § 674 et seq. (recognizing common law action for wrongful use of civil proceedings). The Villani decision merely holds — correctly, as a matter of separation of powers — that the legislature cannot impose liability on attorneys for their conduct during litigation.

    FIFTH, the plaintiff in Villani made the mistake of suing the attorney under the Dragonetti statute alone; the statute of limitations for common law remedies against the attorney has expired. The lesson is simple. If a party wants to seek monetary damages from opposing counsel, either file a timely motion under Pa.R.Civ.P. 1023.2(c) or sue in timely fashion under common law.

    • The problem with the 1023.2 motion is that it will probably be denied, and then the other side will have a good argument that the issue of their conduct was already decided by the lower court.

      I can’t remember the last time, if ever, I’ve had a 1023.2 motion granted. They’re a waste of time, and actually hurt a Dragonetti / abuse of process case.

      • A lawyer who understands this subject says:

        If you don’t like Rule 1023.2 as a remedy, common law abuse of process remains available.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: