Attorneys are expected to act as zealous advocates for their clients. As such, attorneys often pursue claims on behalf of their clients even when the legal theory of recovery is unclear or the facts developed in discovery favor a defense verdict. In some cases, however, attorneys may pursue recovery even where they know that the claims are without merit or the theory of liability is contrary to an established rule of law. When an action is clearly frivolous, the defendants may be entitled to bring an action of their own against both the plaintiffs and counsel for wrongful use of judicial proceedings.
The procedure for recovering sanctions against an attorney for bad faith prosecution of a claim varies by jurisdiction. In Pennsylvania, the legislature passed a statute, commonly known as the Dragonetti Act, that authorized defendants in a civil action to bring a separate action against those who pursued them if they prevailed in the underlying case and if the action constituted a wrongful use of judicial proceedings.
Within the past several years, some state court judges, however, have ruled that the Act is unconstitutional as applied to attorneys because it encroached on the right of the Pennsylvania Supreme Court to regulate attorney conduct. This issue was ultimately appealed to the Pennsylvania Supreme Court, which issued a recent decision in the matter of Villani v. Seibert.
In deciding the case, the Court noted that under the Pennsylvania Constitution, the Supreme Court has the power to prescribe rules governing the practice of law, the exclusive authority to supervise the conduct of lawyers, and that all laws inconsistent with the authority of the Court shall be suspended. Nevertheless, the Court determined that the purpose of the Act was to compensate victims of frivolous and abusive litigation, and that the Act was not specifically directed against attorney misconduct. The Court therefore declined to recognize generalized attorney immunity from the substantive principles of tort law embodied in the Act. Accordingly, the Court concluded that because the Act did not clearly violate the Pennsylvania Constitution, litigants could use the Act to pursue bad faith claims against attorneys.
The holding in Villani follows other jurisdictions which provide civil recourse for defendants who have incurred damages as a result of frivolous litigation. As a result, attorneys must proceed cautiously when pursuing actions that are known to be without merit. Attorneys who do so risk exposing themselves and their clients to countersuit for wrongful use of judicial proceedings.