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?