The Sanctions Merry-Go-Round

Vol. 15 No. 9

Richard D. Williamson is an attorney with the law firm of Robertson & Benevento in Reno, Nevada.

If you have been in litigation for any appreciable amount of time, chances are that you have declared another attorney’s conduct to be “sanctionable.” You may have even threatened sanctions against someone in a demand letter or moved a court to impose sanctions. The ability to impose sanctions is an important case management tool for courts and, unfortunately, courts must occasionally use it. Sanctionable actions frequently arise in the discovery process. Yet, in the heat of motion practice, litigators will often look to ABA Model Rule of Professional Conduct Rule 11 (or a corresponding state rule) as a basis for sanctions. Before you try to invoke Rule 11, you should make sure you do not end up subjecting yourself or your client to sanctions for doing so.

 

Play fair

Courts are constantly admonishing attorneys to play fair and avoid “hardball tactics.” E.g., Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010). Likewise, Model Rule 3.1 warns that lawyers “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” In other words, in everything lawyers do, they should ensure that their actions and submissions are reasonably supported by the law and the facts of the case. When lawyers forget that, they can get themselves into trouble.

 

Basics of Rule 11

Under the terms of Rule 11, the simple act of submitting any pleading, motion, or other paper to the court is viewed as a certification that the document is legitimate, supported by the facts, and is not being presented for any improper purpose. Fed. R. Civ. P. 11(b). If that certification is false or made without justification, the proponent of that document can be sanctioned. Fed. R. Civ. P. 11(c). Thus, if an attorney files a document that is frivolous, made for an improper purpose, or made without reasonable inquiry as to the facts, that attorney may be sanctioned.

 

Courts will impose sanctions for a baseless motion

Understandably, courts at all levels take Rule 11 very seriously. They do not like baseless motions—regardless of the context. Accordingly, many courts have cautioned that “a frivolous motion for sanctions is, in itself, sanctionable.” Bond v. American Medical Ass’n, 764 F. Supp. 122, 126 n.3 (N.D. Ill. 1991); Foy v. First Nat’l Bank, 868 F.2d 251, 258 (7th Cir. 1989). By asking for sanctions without a reasonable basis for doing so, you may end up snatching defeat from the jaws of victory. See Alliance to End Repression v. Chicago, 899 F.2d 582, 583-84 (7th Cir. 1990) (awarding attorneys’ fees against the prevailing party for improperly seeking sanctions against the losing party).

 

In summary, when attorneys try to improperly wield Rule 11 as a procedural weapon with which to harass and intimidate their opponents, courts may return the favor. Therefore, before filing a motion for sanctions, make sure that you are not the one who is stepping out of line.

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