Page v. Oath Inc.

270 A.3d 833 (Table)

Carter PAGE, Defendant Below, Appellant,

v.OATH INC., Plaintiff Below, Appellee.

No. 69, 2021

Supreme Court of Delaware.

Submitted: November 10, 2021

Decided: January 19, 2022

ORDER

PER CURIAM:

This 19th day of January, 2022, the Court has considered the parties’ briefs, the record on appeal, and the argument of counsel, and it appears that:

(1) In July 2020, Carter Page filed a defamation action in the Superior Court against Oath, Inc., alleging that certain of Oath's subsidiaries had published articles falsely accusing him of colluding with Russian agents to interfere with the 2016 presidential election.

(2) Shortly after that, Page's Delaware counsel moved under Delaware Superior Court Civil Rule 90.1 for the admission pro hac vice of L. Lin Wood, a lawyer licensed to practice in Georgia, so that he could appear as Page's attorney in Page's defamation action. The court granted the motion.

(3) After Page filed an amended complaint, Oath moved to dismiss it. The parties briefed the motion and, on December 16, 2020, the court notified counsel that the court would hear oral argument on the motion on January 13, 2021.

(4) Two days later, the Superior Court sua sponte issued a Rule to Show Cause directing Wood to show why his admission pro hac vice should not be revoked. According to the Rule, "[i]t appear[ed] to the Court that, since the granting of Mr. Wood's [pro hac vice ] motion, he ha[d] engaged in conduct in other jurisdictions, which, had it occurred in Delaware, would violate the Delaware Lawyers’ Rules of Professional Conduct. ..."¹

(5) The Rule identified specific concerns regarding Wood's conduct in litigation in Georgia and Wisconsin related to the recent 2020 presidential election on November 3, 2020. Specifically, the court pointed to several pleading irregularities in an action filed in the United States District Court for the Eastern District of Wisconsin. As far as we can tell, the pleadings in that case were not signed by Wood but named him as an "attorney to be noticed." The court also referred to a complaint of questionable merit filed in the United States District Court for the Northern District of Georgia, in which, the court suspected, "Wood filed or caused to be filed [an expert affidavit] ... [,] which contained materially false information. ..."² In the Georgia case, Wood was the named plaintiff and was represented by counsel.

(6) The court directed Wood and his Delaware counsel to respond to the Rule to Show Cause by January 6, 2021, and stated that it would "hear counsel on [January 13, 2021—the date set for oral argument on the pending motion to dismiss] in response to the Rule to Show Cause."³ The court also invited Oath to state its position, if it had one, but Oath declined.

(7) In his response, Wood denied generally that he had violated "any of the Delaware Professional Conduct Rules or conduct rules in any other jurisdiction in connection with his involvement in the matters cited by the Court."⁴ More specifically, he noted that he had not appeared as counsel in the Georgia litigation but was the plaintiff and represented by counsel in that matter. And he further stated that there had been "no claim of sanctionable or disciplinary conduct against [his counsel] or his firm and certainly none against Wood as plaintiff"⁵ in the Georgia litigation. In connection with a questionable affidavit referred to in the Rule to Show Cause, Wood "denied any intent of the parties, including himself, to mislead the Court."⁶

(8) As to the Wisconsin litigation, Wood pointed out that he was not the attorney of record in that matter and was merely listed as "Counsel to be Noticed"⁷ on the court's docket sheet. He further stated that he "never appeared" in the case during the brief eight-day period between the filing date and the date of dismissal.

(9) Despite legal argument that revocation of his pro hac vice admission was not warranted, Wood "request[ed] to withdraw his application for pro hac vice admission and his appearance"⁸ in this case.

(10) On January 11, 2021, two days before the hearing on the defendant's motion to dismiss and the court's Rule to Show Cause, the Superior Court issued a Memorandum Opinion and Order revoking its prior order admitting Wood pro hac vice and cancelling the January 13 argument on the motion to dismiss. As of that date, neither the Georgia nor the Wisconsin court had cited Wood for sanctionable conduct.

(11) After Wood appealed to this Court, we appointed Matthew F. Boyer, Esquire as amicus curiae to file an answering brief in opposition to Wood's opening brief.⁹

(12) Superior Court Civil Rule 90.1(e) provides that "[t]he Court may revoke a pro hac vice admission sua sponte or upon the motion of a party, if it determines, after a hearing or other meaningful opportunity to respond, the continued admission pro hac vice to be inappropriate or inadvisable." We review a trial court's decision to revoke a lawyer's pro hac vice motion for abuse of discretion.¹⁰

(13) Despite the concerns expressed by the Superior Court in its Rule to Show Cause regarding whether Wood's conduct in the Georgia and Wisconsin case, had it occurred in Delaware, violated the Delaware Lawyers’ Rule of Professional Conduct, it insisted in its opinion and order that it was not engaging in lawyer discipline. Instead, according to the court, it was merely making a determination under Superior Court Civil Rule 90.1(e) of the appropriateness and advisability of Wood's continued pro hac vice admission.

(14) The court did not explain, however, why Wood's request to withdraw his pro hac vice application and appearance did not adequately address the court's putatively limited concern. Instead, without affording Wood the opportunity to appear at the hearing that was scheduled two days hence, the stated purpose of which was to hear his response to the Rule to Show Cause, the court made factual findings adverse to Wood. For instance, the Court found that Wood's conduct in the Georgia and Wisconsin litigation, "albeit not in [the court's] jurisdiction, exhibited a toxic stew of mendacity, prevarication and surprising incompetence."¹¹

(15) The Court also found that the Georgia court's conclusion that there was "no basis in fact or law to grant [Wood] the [injunctive] relief he [sought],"¹² "indicate[d] that the Georgia case was textbook frivolous litigation."¹³ Yet neither the Georgia trial court nor the Eleventh Circuit Court of Appeals,¹⁴ to which Wood appealed, made any findings that Wood's complaint was frivolous or filed in bad faith. As to this point, we do not view the Georgia court's determination that Wood's request for injunctive relief was without factual or legal merit as equivalent to a finding that his complaint was frivolous. To the contrary, our own ethical rules, by prohibiting a lawyer from asserting claims "unless there is a basis in law for doing so that is not frivolous,"¹⁵ implicitly recognize that a claim ultimately found to lack a basis in law and fact can nonetheless be non-frivolous.

(16) More questionable yet was the court's insinuation that Wood was at least partially responsible for the troubling events that occurred at the United States Capitol on January 6, 2021—a topic not addressed in the Rule to Show Cause.

(17) In reaching...