Source: WikiMedia Commons

By Hillary Hunter, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Suppose while swimming through life, innocently enough you draw the attention of an aggressive lawyer. You did nothing wrong, but still find yourself being circled by a predator. Now, like a shark sensing blood in the water, suppose the lawyer goes in for a bite. He files a baseless lawsuit, one aimed at wearing down your resources and patience to the point where you will surrender and settle. As you do your best to keep your head above water, you consider your options. Is there any shark repellent around?

Victims of lawsuit abuse in some states, in fact, do have legislatively crafted tools at their disposal to fight back. For example, Pennsylvania’s Dragonetti Act recently survived a state constitutional separation–of–powers challenge. The Pennsylvania Supreme Court’s decision to uphold the law in Villani v. Seibert reflects the shared responsibility of the legislative and judicial branches to direct a state’s legal system and govern attorney conduct.

The Dragonetti Act authorizes a private cause of action against any person taking part in the wrongful initiation or continuation of civil proceedings against another. The plaintiff in a Dragonetti Act suit must show that the defendant acted “in a grossly negligent manner or without probable cause,” and that the suit was brought “primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim.”

In the suit that gave rise to the Dragonetti claim, attorney Thomas Schneider represented the Villanis in a land-ownership action against the Seiberts that the Villanis ultimately lost. Following the conclusion of the suit, the Seiberts filed claims against the Villanis and Schneider for the wrongful use of civil proceedings. Schneider argued the Dragonetti Act unconstitutionally infringed on the judicial branch’s exclusive ability to regulate the practice of law. Further, Schneider contended that attorneys should be immunized from suit under the Dragonetti Act as the Act exposes attorneys to personal civil lawsuits for actions that are otherwise in compliance with the rules of professional conduct. In response, the Seiberts contended that the Dragonetti Act provided a substantive right for redress of wrongs and does not seize regulatory control for the legislature over the practice of law.

The Pennsylvania Supreme Court held that the Dragonetti Act contained a “strong substantive, remedial thrust” because it manifested “a legislative purpose to compensate victims of frivolous and abusive litigation” instead of a purpose directed at attorney regulation. The court added that the law was “of general application” and not specifically targeted at lawyers.

Notably, the court left open the possibility that attorneys could claim immunity from the Dragonetti Act in some narrow circumstances. Attorneys arguing in good faith for a change in existing precedent might be excepted from the law’s application. Also, the court noted that because its rules prescribe sanctions as a way to punish and deter attorney misconduct, lawyers could be immune from Dragonetti Act claims seeking punitive damages. By specifically referencing those circumstances in dicta, the court’s opinion suggests some level of protection for the judiciary’s authority over the practice of law.

The Villani court’s cogent explanation of the judiciary’s role (versus the legislature’s) in crafting remedies for those harmed by lawyers’ misuse of the legal process resonates more broadly than this particular case or even the separation of powers under Pennsylvania’s constitution. The court acknowledged the legislative branch’s superior abilities in addressing issues of substantive law. While a court must wait for a dispute to arise, the legislature possesses full power to conduct hearings and investigations. The judicial system’s authority to promulgate procedural and ethical guidelines for those practicing before the courts and to decide all issues of law squarely before it is intended to coexist with the legislature’s duty to enact substantive laws. The structure of the Pennsylvania Constitution, as well as the United States Constitution, encourages “interdependence and reciprocity between the various branches.”

The separation–of–powers argument proposed in Villani emulates similar efforts by opponents of civil justice reform across the country to invalidate tort reform legislation. Arguments that the judicial branch alone could regulate the administration of lawsuits, for instance, recently convinced the Florida Supreme Court to invalidate a four-year-old law that sought to increase the scrutiny of expert scientific testimony in litigation. The Villani decision, however, demonstrates that the doctrine of separation of powers can just as effectively support the constitutionality of tort reform legislation.

By passing the Dragonetti Act, the Pennsylvania legislature provided both a deterrent against abusive lawsuits and a means of redress for those victimized by such suits. While the Dragonetti Act does not apply exclusively to lawyers, the decision in Villani confirms their liability under the act. As the court explained, the Dragonetti Act possesses solid support from the state constitution’s separation–of–powers doctrine—a conclusion that should prove persuasive in other situations and in other states.

Unfortunately, the overwhelming amount of unnecessary litigation in today’s society forces everyone to swim in shark-infested waters. Courts should allow elected representatives to arm citizens with countermeasures against unwarranted predation.