Can an attorney merely acting as counsel be liable for violating another’s civil rights? Answer: Yes, as shown in Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (C.A.3 (Pa.) 1994).
In Jordan, the underlying dispute arose over a commercial lease between a landlord, Arnold T. Berman, and a tenant, Jordan Mitchell Inc. Through a confession of judgment executed by the tenant’s predecessor landlord’s counsel, Fox, Rothschild, O’Brien & Frankel, entered a judgment against the tenant for rent. On the judgment, without prior notice or hearing, the sheriff of Philadelphia garnished the tenant’s checking account. The tenant ultimately succeeded in opening the judgment.
While the underlying rent dispute was pending, the tenant filed a §1983 (civil rights) claim against the landlord’s counsel claiming execution without prior notice as violating the Fourteenth Amendment’s requirement of procedural due process.
The district court dismissed the tenant’s §1983 claim against counsel, holding counsel entitled to qualified immunity. However, while the appeal(s) was pending, the U.S. Supreme Court held that private people acting under color of law are not entitled to qualified immunity.
The U.S. Court of Appeals for the Third Circuit ultimately concluded that the entry of the confessed judgment alone did not involve a state action "with consequences significant enough to make [defendant-counsel] state actors," but counsel’s use of the sheriff to enforce the judgment did make them people acting "under color of state law." Without prior notice or opportunity to be heard, counsel’s execution violated the due process clause.
Pennsylvania law authorizes the prothonotary to enter judgment by confession upon a complaint in confession of judgment. After the prothonotary performs the "ministerial act of entering judgment on confession, he is required immediately to notify the defendant he has done so." Practically, notice is usually sent the same day as judgment is entered.
Once the prothonotary enters a confessed judgment, the plaintiff can secure a writ of execution upon a praecipe. On filing the praecipe, the prothonotary issues a writ of execution even if the praecipe is filed before notice of entry of the judgment has been mailed to the defendant. The writ of execution commands the sheriff to seize any property of the defendant that the plaintiff has described or, if a garnishee is named, to serve the writ upon the garnishee. Service of the writ on a garnishee attaches all of the defendant’s property that the garnishee then or thereafter possesses.
To obtain relief from a confessed judgment, a defendant is to petition to strike and/or open. If the petition states prima facie grounds for relief, the court must issue a rule to show cause, fix a return date on the rule and thereafter dispose of the matter.
Any judgment, lien or restraint on disposition of a defendant’s property that results from entry of judgment is preserved while the proceedings to strike/open pend. During the pendency of the petition, the court has no authority to dissolve the lien of the judgment unless the defendant posts security adequate to assure the judgment’s payment.
An order granting a petition to open (as opposed to striking) leaves the judgment undisturbed. Though the judgment is opened, any lien it creates and any other restraint it imposes on the debtor’s use of or access to its property is continuing until final determination. On the contrary, an order striking the judgment removes the lien.
In order to prevail in a claim under §1983, a plaintiff must establish: (1) the violation of a federally protected constitutional or statutory right; (2) by state action or action under color of law.
While most rights secured by the constitution are protected only against infringement by governments, a private party may be deemed subject to civil rights liability if the private party causes "a constitutional deprivation" that is "fairly attributable to the state."
First, the deprivation must be caused by the exercise of some right or privilege created by the state, by a rule of conduct imposed by the state or by a person for whom the state is responsible. Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor — either because he or she is a state official, has acted together with or has obtained significant aid from state officials or because his or her conduct is otherwise chargeable to the state.
The defendant — Fox Rothschild — was deemed to have easily met the first part of the above test — the power to confess judgment depends on a state statute and the procedure for doing so depends on state rules. As to the second prong, attorneys can be treated as state actors if they effectively and knowingly invoke the force of law without observing due process requirements.
"A state procedure permitting private parties to file a complaint and confess judgment essentially involves acquiescence by the state, not compulsion." Therefore, the action of filing the confession of judgment, in and of itself, did not cause counsel to be treated as acting under color of law. However, counsel’s use of the sheriff to garnish caused the state to forcibly deprive the tenant of its property without the pre-deprivation notice and hearing due process requires. Writs of execution and attachment "plainly involve or threaten the use of legal force."
"Though we think a debtor need not have a detailed technical knowledge of the state law on confession in order to waive its due process rights, it also seems to us that a creditor’s failure to comply with all of the state’s technical rules concerning judgment by confession is not usually material to the issue of knowing and intelligent waiver. Otherwise, a failure to comply with state law would automatically translate into a §1983 claim," the opinion held.
While not entitled to qualified immunity as a private actor, counsel is entitled to "good faith" immunity — whether counsel acted with "malice" (i.e., subject to appreciation that an act deprives one of a constitutional right). In this circumstance, a civil rights plaintiff must prove at least "gross negligence."
In Steele v. Richardson, 347 Fed.Appx. 754 (C.A.3 (Pa.) 2009), the Third Circuit in analyzing Jordan held that the filing of a lis pendens was not a seizure but rather only a lien; thus, §1983 is not applicable. In Grillo v. BA Mortgage, Civ.A.No. 4-2897 (E.D.Pa. October 4, 2004), a sheriff’s sale upon a praecipe (not motion) to reassess foreclosure judgment damages precluding prior pay-off of the adjudicated (original) judgment amount is a civil rights violation. A "wrongful foreclosure" (mistaken foreclosure) filing, in and of itself, does not make a civil rights claim. (See Zebrowski v. Wells Fargo Bank, 657 F.Supp.2d 511 (D.N.J. 2009).) Execution upon an ex parte order does not make a §1983 claim — the order was granted by a judge (as opposed to the sheriff in Jordan being compelled by praecipe). (See Egervary v. Young, 366 F.3d 238 (C.A.3 (Pa.) 2004).)
In harmonizing the above cases with Jordan’s precedent, it appears an attorney is civil rights liable for forcibly compelling a state actor to seize property through the use of unilateral legal process if there is no notice and an opportunity to be heard. The mere act of filing a lawsuit and then perfecting service is not enough; however, garnishment, sheriff’s sale or other unilateral execution proceeding will be if unaccompanied by opportunity for contest.
Interestingly, the Jordan line of cases specifically deals with Fourteenth Amendment procedural due process property seizures. However, Jordan certainly opens the door to other attorney liability constitutional deprivations. For example, what if a lawsuit were strictly a "strategic lawsuit against public participation" (SLAPP) to silence First Amendment protected speech (usually, SLAPP lawsuits are couched in terms of defamation)? What if the lawsuit were a mechanism to allow discrimination (i.e., filing a conversion lawsuit against a protected class member in lieu of his or her prohibited termination)? What if the lawsuit were merely a mechanism by which to issue subpoenas toward the invasion of privacy? What if the lawsuit were merely a pre-emptive attempt to prevent a lawsuit (i.e., seeking a declaratory judgment or filing a debt collection action against a former client as a mechanism to preclude that client’s threatened legal malpractice action)?
Clearly, the more unilateral the action by counsel (such as, by praecipe, writ of execution, subpoena, etc.), the more likely counsel will be held a civil rights violator. However, contrary to Steele (nonprecedential), counsel’s offensive use of a lawsuit, itself, is not enough.
Though this author maintains an active attorney liability practice and was, in fact, counsel in some of the above-cited cases, it is, candidly, uncomfortable for all of us to think of ourselves as somehow intermeshed with our client’s strife (whether it be Dragonetti, sanctions, civil rights or otherwise).
On reflection, however, this discomfort objectively derives from our shared belief that we are merely furthering our client’s cause with requisite zealousness. Said differently, anecdotally (disciplinary board statistics and the like will bear this out), the instances of attorney misconduct are oft-discussed (hence, this column), but relatively rare (and, even when founded, often thereafter debatable on the merits).
For example, an older colleague recently remarked that he had never seen a "frivolous" lawsuit secondary to the economic impracticalities of maintaining same. As our discomfort seems to surround the believed propriety of our behavior, there must be a demarcation for when our behavior is not just mistaken or foolish, but rather a mechanism intended toward an unjust end.
Simply, as attorneys (like doctors), legal action is our scalpel and we must distinguish its use between malevolent purpose as opposed to merely mal-result.
Matthew Weisberg is the managing partner of Weisberg Law. He focuses the firm’s practice on consumer and individual rights throughout Pennsylvania and New Jersey. Weisberg Law represents victims of legal malpractice and other professional negligence resulting in financial injury, fraud, civil rights violations, consumer abuse and foreclosure actions.