Judicial Scrutiny of Frivolous Litigation Statute

Nobody wants to be named as a defendant in a lawsuit.  Litigation is expensive, time-consuming, upsetting, and often intimidating for clients.  Being dragged into a suit is even more frustrating when the defendant knows the claims are entirely without merit.  Defendants who are the victim of frivolous litigation are not without recourse, however.  Where the underlying lawsuit is unwarranted, without evidentiary support, or presented for an improper purpose, such as harassment or delay, defendants may have the opportunity to seek damages against the plaintiff and the lawyers who brought the claim.

In Pennsylvania, frivolous litigation claims are authorized by state statute, which permits defendants who prevail in a lawsuit to file their own suit against the plaintiff if the plaintiff pursued the case without probable cause.  In addition, attorneys who file frivolous claims risk subjecting themselves to their own lawsuits if they have no basis to bring a claim.

Yet, recent court decisions have called into question the legality of the statute, and the State Supreme Court has granted an appeal to decide whether frivolous claims under the statute may proceed.  The plaintiffs in the lawsuit filed a frivolous litigation claim against an attorney who represented clients in an unsuccessful underlying ejectment action.  But the trial court declined to address the merits of the frivolous litigation claim against the attorney.  Instead, it ruled that the statute giving rise to the claim was itself an infringement on the authority of the judiciary to determine attorney discipline within the state.

The state Supreme Court will now consider whether the frivolous litigation statute is an unconstitutional encroachment on the right of the Court to regulate the conduct of attorneys, even though the statute still remains valid as applied to litigants in an underlying matter.

Regardless of how the case is decided, attorneys must act as the first barrier to weeding out lawsuits or positions that have no basis in fact or law.  Attorneys who pursue claims without merit risk subjecting their clients to frivolous litigation claims, and may be subject to scrutiny themselves either through subsequent litigation or disciplinary proceedings.

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