A Cautionary View of the New Rule 1023.1
In a well-intentioned effort to respond to cries that frivolous litigation crowds Pennsylvania dockets and forces medical malpractice and other insurance premiums to rise beyond the pale, on April 22, 2002, the Pennsylvania Supreme Court issued Rule 1023.1 of the Pennsylvania Rules of Civil Procedure. Simply put, Pennsylvania state courts have been transformed, effective July 1, 2002, from an inactive sanctions jurisdiction to an active sanctions jurisdiction.
The explanatory comment accompanying the rule states, “some prefiling inquiry [is required] into both the facts and the law to satisfy the affirmative duty imposed by the rule. However, this rule is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories. The standard is only reasonableness under the circumstances.” What “some” means is quite uncertain.
It continues: “This rule recognizes that sometimes a litigant may have good reason to believe that a claim or defense is valid but may need discovery, formal or informal, to gather and confirm the evidentiary basis for the claim or defense. If evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention.” What “may have” and “reasonable opportunity” mean is equally unclear.
After this “reasonableness” test, the comment explains that “Rule 1023.1 motions should not be made or threatened for minor, inconsequential violations ... or as a discovery device or to test the legal sufficiency of allegations in the pleadings ... or to emphasize the merits of a party’s position, to exact an unjust settlement, to intimidate an adversary into withdrawing contentions that are fairly debatable, to increase the costs of litigation, to create a conflict of interest between attorney and client, or to seek disclosure of matters otherwise protected by the attorney-client privilege or the work-product doctrine.”
If, of course, the purpose is to permit one party to confront the weakness of a case, all of these matters will be involved. But, of course, the purpose is to save the costs of litigation.
Perhaps not. For the comment tells us: “the court may defer its ruling (or its decision as to the identity of the persons to be sanctioned) until final resolution of the case in order to avoid immediate conflicts of interest or to reduce disruption created if a disclosure of attorney-client communications is needed to determine whether a violation occurred or to identify the person responsible for that violation.” In other words, if the court has already decided that you have pursued a frivolous case, you may not know it for months or years.
Enough for the reform. How are you to advise your client about it? How will this affect costs? Conflicts between attorney and client? How can you ethically discourage a client from pursuing such a motion? Can a motion be pursued by counsel who is already subject to a motion from the other side?
About a decade ago, the Pennsylvania Supreme Court declared its intention to end litigation about litigation. In Rule 1023.1, however well intentioned, the result will be to foster even more litigation about litigation.
Given the seismic shift in Pennsylvania sanctions law, every case being pursued must involve a Rule 1023.1 review for both sides. New offices procedures must be devised, new client engagement letters must be formulated and new cost estimates for the prosecution of litigation must be developed. Above all, take an aspirin and call your doctor — if your doctor is still practicing after he or she realizes that medical malpractice litigation costs have just mushroomed, wiping out any conceivable benefit from the recently enacted medical malpractice liability reforms.
Jeffrey B. Albert is a
shareholder of the Philadelphia-based law firm of McKissock & Hoffman P.C.,
with offices also in Harrisburg, Doylestown, West Chester and Westmont, N.J. He
serves as co-chair of the PBA Task Force on Law Practice Management and Legal
Technology and as chair of a PBA Professional Liability Committee subcommittee.