FRCP 11: A Wounded Remedy for Unethical Behavior
by Sandra Davidson1
"I'll sue." These, of course, can be intimidating words. A justified suit is part of our judicial system that rights wrongs and works as a societal safety valve. But if an attorney files a frivolous suit based on inadequate investigation, mis-representation or what the defendant might consider sheer meanness, then a different safety valve should come into play: sanctions under Federal Rules of Civil Procedure Rule 11.
But Rule 11, as amended in 1993, has a "safe harbor" provision that grants an attorney a 21-day grace period in which to withdraw frivolous court filings. This safe harbor has caused controversy that stretches beyond the federal courts and into the halls of Congress. Proposed federal legislation would rescind the grace period. This article gives a brief overview of the controversy-the grace period and its fall from grace in some circles.
I. Requirements Under Rule 11(b)
The wording of Rule 11(b) is straightforward. Attorneys, among their other duties, must make their claims based on reasonable inquiries into the facts and the law, and they must not use the courts for harassment:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,-
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Attorneys who fail to live up to their Rule 11(b) duties may be subject to Rule 11(c) sanctions. An attorney may file a motion for sanctions under Rule11(c)(1)(A), or the court may initiate the sanctions "[o]n its own initiative" under Rule 11(c)(1)(B).
2
The purpose of the sanction, clearly, is deterrence: "A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated," according to Rule 11(c)(2). The Advisory Committee notes on Rule 11 say:
Since the purpose of Rule 11 sanctions is to deter rather than to compensate, the rule provides that, if a monetary sanction is imposed, it should ordinarily be paid into court as a penalty. However, under unusual circumstances, particularly for (b)(1) violations, deterrence may be ineffective unless the sanction not only requires the person violating the rule to make a monetary payment, but also directs that some or all of this payment be made to those injured by the violation. Accordingly, the rule authorizes the court, if requested in a motion and if so warranted, to award attorney's fees to another party. 3
Deterrence, likewise, was the purpose of the rule in its two prior iterations.
4 But one might also argue that just as criminal statutes punish even though their primary purpose is deterrence, punishment is a part of the Rule 11 scheme, too. Sanctions arguably do act as a reprimand or punishment for attorneys who fail to live up to their ethical obligations.
The language of Rule 11(c)(2) indeed gives judges broad leeway in fashioning monetary or non-monetary sactions: The sanction itself "may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation." In short, the court, acting in fullblown equitable mode, may fashion the penalty to fit the infraction and the infractor. However, only attorneys may receive sanctions if Rule 11(b)(2) has been violated.5 But Rule 11(c)(1)(A) does call for joint responsibility for a sanctioned attorney's law firm: "Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees." As explained in the Advisory Committee's notes for Rule 11, joint responsibility was not part of the 1983 version of Rule 11, which did not allow sanctions against law firms.6 Also, recovery is available for the cost of preparing or opposing the motion for sanctions.7
II. Compelling Compliance with Rule 11 Sanctions
Getting a recalcitrant attorney to pay up is not a matter of an execution on a judgment.8 A sanction is a penalty for what Rule 11 calls a "violation." Failure to comply with court-ordered sanctions may trigger further penalties for contempt of court.
According to United States Code: "A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as - ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."9 The Missouri counterpart is: "Every court of record shall have power to punish as for criminal contempt persons guilty of: . . . (3) Willful disobedience of any process or order lawfully issued or made by it. . . ."10
The power of contempt of court puts real teeth in sanctions a judge orders under Rule 11.
III. So What is the Potential Problem?
But judges do not get to exercise their Rule 11 powers if an errant attorney takes advantage of Rule 11's safe harbor provision. A party seeking sanctions must give the other party a 21-day grace period, the safe harbor period. The rule requires serving all parties with copies of a motion for sanctions, but then waiting 21 days to file the motion with the court, preserving that time period for the challenged party to withdraw or correct the challenged claim.11 In other words, attorneys who fail to do their required investigative work, make willful misrepresentation to the court, or file a totally frivolous claim in order to harass their target are off the hook under Rule 11 so long as they withdraw the errant claim within the prescribed 21 days.
Does the safe harbor promote the cause of deterrence? Supreme Court Justice Antonin Scalia dissented when the Judicial Conference sent its 1993 Rule 11 changes to Congress for adoption, opining that the proposed changes, particularly the addition of the safe harbor provision, would make Rule 11 "toothless."12 Errant attorneys, Justice Scalia predicted, would be able to "file thoughtless, reckless, and harassing pleadings, secure in the knowledge that they have nothing to lose. . . ."13
Arguably, Rule 11 in its current form is too permissive-and too dismissive of unethical behavior by an attorney. By the time the attorney on the other side has done the work to prepare the motion for sanctions, a great deal of time, effort and his or her client's money may well have been spent. But so long as the attorney-in-the-wrong withdraws the erring document before 21 days have elapsed, it is as if he or she never submitted such a document to the court. All is forgiven under Rule 11's safe harbor concerning the attorney-in-the-wrong. But, of course, the party on the other side still gets to pay his or her own attorney fees. Is this fair, or is it a loophole that permits legal harassment up to a certain point? An attorney may sink a hook into the wounded party, but so long as the hook is withdrawn within the prescribed 21 days, the flesh extracted by the hook-the time, energy, bother and attorney fees-is legally acceptable under Rule 11.
A counterpart to Rule 11, arguably, would be a rule that if a witness were confronted after purposefully misrepresenting facts to the court, the court would forgive the lie if, within 21 days, the witness recanted. No penalty for perjury would then be forthcoming. Just withdraw the words, and all is forgiven.
Giving second chances is, to some degree, admirable-say, if someone has made an honest mistake. The difference between misrepresentation and mistake is a difference with ethical import. Of course, if the mistake occurs because of a failure to do minimal investigation, then the term "mistake" is perhaps inappropriate. The better term would be negligence. But honest errors may occur, even to diligent attorneys. Such attorneys should be given a break because no amount of deterrence can eliminate the mistakes that sometimes occur even when one is exercising an appropriately high degree of care. However, the rule makes no distinction between honest mistakes and the vilest of behavior in filing errant court documents: All is forgiven so long as the 21-day time requirement is met. Saints and sinners drink from the same well of forgiveness.
IV. Should Rule 11 be Changed?
The argument for eliminating the 21-day grace period is not only an ethical one concerning the current law's failure to deter, but also an economic one. Forcing the wrongfully sued defendant to have to challenge the frivolous charges or misrepresentations, but then denying any financial recovery to that defendant, deprives him or her of funds. Thus, the defendant suffers an irretrievable loss. This loss constitutes an injury that the federal rule on sanctions should not permit. (Of course, it may also be that a plaintiff must attack a frivolous defense or misrepresentation, so this problem of loss is not just an issue for defendants. This article will, however, for convenience only, argue in terms of defendants having to challenge frivolous claims or misrepresentations made by plaintiffs.)
But how big a problem is this 21-day grace period? In short, how often do plaintiffs withdraw, when challenged, within 21 days? Unfortunately, statistics on how often plaintiffs withdraw under threat of sanctions are not available.
Some interesting statistics on Rule 11, however, are available. For example, a large survey on Rule 11 prior to the 1993 revision, when there was no 21-day grace period, produced many interesting charts and numbers, although the authors did not purport to recommend whether to keep Rule 11 in its "graceless" form.14 The survey results were based on responses of 3,358 attorneys.15 Among the interesting findings was that frivolous claims constituted the most common cause for Rule 11 sanctions (21.3%).16 Of perhaps more interest in terms of attorneys' ethical behavior, the survey showed that under the old Rule 11, more than 60% of the attorneys reported that concern over Rule 11 had indeed altered their activities. To be more precise, 19% reported that they had declined cases based on Rule 11 concerns; 28.8% had discouraged clients and 24.5% had advised clients not to pursue a particular cause of action because of Rule 11 concerns; 12.2% had withheld filings; 36.7% had given a case extra review; and 19.3% had withheld a claim or a defense, all based on Rule 11 concerns.17 In short, Rule 11 prior to its 1993 revision was having a practical, salutary effect on attorney behavior.
The change came and, according to a survey done in 1995 for the Federal Judicial Center, most attorneys and judges were pleased with new Rule 11. Very few judges or attorneys who answered the survey thought that groundless litigation had increased (9% of judges thought the problem had increased, and 1% of plaintiffs' attorneys agreed, as did 10% of defendants' attorneys). When asked whether they opposed or supported "the inclusion of a safe harbor provision in Rule 11," 7% of judges strongly opposed it, and 9% moderately opposed it. On the other hand, 32% of judges strongly supported the safe harbor provision, and 38% moderately supported it. Only a total of 14% of plaintiffs' attorneys opposed the safe harbor, while 61% strongly supported it and 19% moderately supported it - for a total of 80% support among plaintiffs' attorneys. Defendants' attorneys also supported the safe harbor: While 27% opposed it, 61% supported it, with 28% saying that they strongly supported the safe harbor.18
Another change that came in 1993 gave courts discretion on whether to impose any sanctions at all. When asked in the 1995 survey if "[t]he court should be required to impose a sanction when a violation is found," only 22% of judges said yes, and 24% of plaintiffs' attorneys and 27% of defendants' attorneys said yes.19
Support for Rule 11 in its current formulation is only growing, if one can rely on surveys. Another survey conducted under the auspices of the Federal Judicial Center 10 years later (in 2005) asked if there was a problem with "groundless litigation."20 Of the 287 federal district judges who answered the survey, 15% said there was no problem, while 38% said the problem was very small and 32% said it was small. In short, 85% said the problem was small to non-existent. Only 12% said the problem was moderate, 2% said large, and 1% said very large. The survey also asked: "Is the current problem (if any) with groundless litigation in civil cases on your docket smaller than, about the same as, or larger now than it was before Rule 11 was amended?" Groundless litigation had never been a problem, according to 12% of the judges. While 8% said the problem was much smaller and 11% said it was slightly smaller, the majority (54%) said the problem was the same. Only 6% thought the problem was slightly larger, and 1% thought it much larger.21
On the question of the "safe harbor" provision in the current formulation of Rule 11, 86% of the judges responding in the 2005 survey supported the safe harbor. This is an increase from the 70% who supported the safe harbor in the 1995 survey. Strong support for the safe harbor increased from 32% to 60%. On the other hand, opposition to the safe harbor during that 10-year period decreased from 16% to 10%.22
A symposium held on the occasion of the tenth anniversary of the 1993 changes to Rule 11 became the subject of the Winter 2004 edition of the Loyola of Los Angeles Law Review. It is an excellent source for readers who want to explore Rule 11 in depth.23 Some of the symposium participants held a favorable view of the current version of Rule 11.24 Some had a more critical view.25 A problem, identified through empirical research by Professor Danielle Hart, is that there is an increase in alternative forms of sanctions under the current version of Rule 11 - a virtual sidestepping of the rule's safe harbor provisions. Seekers of alternative sanctions are using United States Code26 or using the court's inherent power to sanction misconduct.27 While Hart seems to support the 1993 amendments to Rule 11, she suggests that courts not impose alternative sanctions when the seeker of sanctions indeed is attempting to evade Rule 11's safe harbor.28 In agreement that the safe harbor rule has resulted in seeking of alternative sanctions is Professor Georgene Vairo.29 Concern about judges' use of their inherent power to sanction is also expressed by Professor George Cochran.30 He is clearly in favor of Rule 11's safe harbor provision, calling it a step in the right direction.31
A thought-provoking proposal suggested at the symposium is to expand Rule 11 to cover all disciplinary infractions. One author, Professor Peter A. Joy, presented interesting statistics: Out of 444 cases where courts imposed sanctions, the attorney also received sanctions in a public disciplinary proceeding in only 22 cases. And of those 22 cases, in only three cases did the attorney receive disciplinary sanctions for the very same conduct that led to Rule 11 sanctions.32 Still, Joy does not think that there should be a closer correlation between Rule 11 sanctions and disciplinary sanctions.33 However, attorney Richard Johnson advocates expansion of Rule 11 to cover all disciplinary infractions.34 He points out that the tenth anniversary of Rule 11 was also the twentieth anniversary of the American Bar Association's Model Rules of Professional Conduct.35 In arguing for greater integration of Rule 11 and other ethical rules for attorneys, he uses statistics: Courts have discussed the Model Rules of Professional Conduct in less than 0.5% of the more than 8,000 opinions in cases involving Rule 11.36 Johnson compares other disciplinary rules to Rule 11 and argues that Rule 11 should indeed be the enforcement vehicle for all disciplinary matters. He argues that "the integration of legal ethics and professional responsibility with Civil Rule 11 should be examined as part of a total system of attorney regulation."37 In short, he wants to expand Rule 11 so that it incorporates all violations of the Model Rules of Professional Responsibility. Vario considers Johnson's argument intriguing, but asks "whether it is appropriate for the federal courts, through Rule 11, to become the arbiters of rules of professional conduct. Currently, we look to each of the states to enforce their rules of conduct."38
In 1995, legislation that failed to gain passage would have eliminated the safe harbor provision.39 But now momentum for change to Rule 11 has again appeared in the form of proposed federal legislation. H.R. 4571 and 420 have reared their ugly or lovely heads, depending on one's perspective.
V. The Lawsuit Abuse Reduction Act (LARA)
The Lawsuit Abuse Reduction Act of 2004, H.R. 4571, targeted Rule 11 for change. Introduced by Rep. Lamar Smith (R-Tex.), the bill supported both mandatory sanctions for frivolous suits and elimination of nationwide forum shopping. Under that proposed legislation, Rule 11 sanctions would become mandatory instead of discretionary, and the 21-day "safe harbor" period would be eliminated. The bill passed the House on a 229 to 174 vote, but the legislation was not introduced in the Senate.40
Now it is H.R. 420 - the Lawsuit Abuse Reduction Act of 2005 - that is garnering both support and opposition. Among supporters is a newly formed coalition called the Lawsuit Abuse Reform Coalition (LARC).41 Comprised of more than 70 member organizations from the business world, its supporters include the National Association of Manufacturers, the National Association of Wholesaler-Distributors, the National Federation of Independent Businesses, the National Restaurant Association, and the U.S. Chamber Institute for Legal Reform.42 Another supporter of the legislation is the American Tort Reform Association.43
The Judicial Conference of the United States opposes the Lawsuit Abuse Reduction Act.44 Also opposing that law is the American Judicature Society.45 In part, their opposition seems to be a classic battle over the separation of powers.46 Judges may well be opposed philosophically to legislators trying to become too intimately involved in courtroom procedure.
According to the 2005 survey of federal district judges released by the Federal Judicial Center, more than 80% of the 278 district judges indicated that "Rule 11 is needed and is just right as it now stands." In evaluating the alternatives, 87% of the respondents preferred the current Rule 11, 5% preferred the version in effect between 1983 and 1993, and 4% preferred the version proposed in H.R. 4571.47 Support for the current Rule 11 is 87%, compared to a total of 9% preferring the older rule or the Lawsuit Abuse Reduction Act rule. That is overwhelming.
Also, the American Association of Trial Lawyers' web site has harsh words about the Lawsuit Abuse Reduction Act.48 But this article, "Proposal Unfairly Targets Civil Rights Plaintiffs and Chills Meritorious Claims," which appears under the hearing of "Factsheets & Resources," says that "[i]n 1993, the U.S. Congress amended Rule 11 . . . in large part because it was being abused by defendants in civil rights cases. . . ." (Emphasis added.) That language is perhaps misleading. Congress by itself did not modify Rule 11 but only approved modifications transmitted to it by the Judicial Conference, headed by Supreme Court Chief Justice William Rehnquist.49
The battle over Rule 11 will continue.50 Of course, whatever one thinks about the current Rule 11 may well be colored by personal experiences. Fairly recently, I received payment of my attorney fees as a result of Rule 11 sanctions. But I held my breath during the 21-day waiting period. Had the other side simply withdrawn its complaint, either my client would have paid my bill or I would have written the time and effort off as a pro bono contribution to a conscientious client who should never have been put through the ordeal of a federal lawsuit. Not surprisingly, my view is that the safe harbor of Rule 11 can have a dual effect of tolerating arguably unethical behavior by attorneys and depriving wronged defendants from the ability to recover their economic loss caused by such behavior.
Perhaps more important than making up our own minds about Rule 11 is that we attorneys be aware that this debate is ongoing. The future of Rule 11 may, in effect, be controlled by legislators, not judges. And even we who do not particularly like Rule 11 can have qualms about that potential turn of events.
Footnotes
1 Sandra Davidson, Ph. D., J.D., teaches media law at the University of Missouri School of Journalism and School of Law. She is the attorney for the Columbia Missourian.
2 Fed. R. Civ. P. 11(c)(1)(B). For case law on Rule 11 sanctions, see, e.g., Jerold S. Solovy, Norman M. Hirsch, Margaret J. Simpson & Christina T. Tomaras, Sanctions Under Rule 11: A Cross-Circuit Comparison, 37 Loy. L.A. L. Rev. 727 (2004).
3 Fed. R. Civ. P. 11 advisory committee's note available at www.law.cornell.edu/rules/frcp/ACRule11.htm (last visited Dec. 27, 2005).
4 See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990), which says the rule's "central goal is deterrence." The Court also says, "[T]he central purpose of Rule 11 is to deter baseless filings in district court. . . . Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable and `not interposed for any improper purpose.'" Id.
5 Under Fed. R. Civ. P. 11(c)(2)(A): "Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2)," which says that "the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. . . ."
6 Fed. R. Civ. P. 11 advisory committee's notes available at www.law.cornell.edu/rules/frcp/ACRule11.htm (last visited Dec. 27, 2005).
7 "If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion." Fed. R. Civ. P. 11(c)(1)(A).
8 See Fed. R. Civ. P. 54 on what constitutes a "judgment." Also, Fed. R. Civ. P. 11 sanctions should not be confused with "attorney fees," which are likewise covered under Fed. R. Civ. P. 54. See Fed. R. Civ. P. 54(d)(2)(B), which says a motion for attorney fees "must be filed and served no later than 14 days after entry of judgment," so clearly a judgment and attorney fees are two different things even in cases not involving sanctions.
9 18 U.S.C. § 401 (2002).
10 Section 476.110, RSMo Supp. 2005.
11 "A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." Fed. R. Civ. P. 11(c)(1)(A).
12 Charles Yablon, Hindsight, Regret, and Safe Harbors in Rule 11 Litigation, 37 Loy. L.A. L. Rev. 599, 611 (2004), available at llr.lls.edu/volumes/v37-issue3/documents/yablon.pdf.pdf (last visited Dec. 27, 2005). For discussion of the heated debate over the 1993 Rule 11 changes, see, e.g., Theodore C. Hirt, A Second Look at Amended Rule 11, 48 Am. U. L. Rev.1007, 1022-25 (1999), available at www.federalappeals.com/attorney/hirt.pdf (last visited Dec. 27, 2005).
13 Yablon at 611.
14 See Lawrence C. Marshall, Herbert M. Kritzer, & Frances Kahn Zemans, The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943 (1992), available at www.polisci.wisc.edu/~kritzer/research/rule11/rule11NWLR.htm (last visited Dec. 27, 2005).
15 Id. at 950.
16 Id. at 953.
17 Id. at 961.
18 See John Shapard, George Cort, Marie Cordisco, Thomas Willging, Elizabeth Wiggins & Kim McLaurin, Report of a Survey Concerning Rule 11, Federal Rules of Civil Procedure, 4 Federal Judicial Center (1995), available at www.law.cornell.edu/rules/frcp/Rule11.htm and at www.fjc.gov/public/pdf.nsf/lookup/rule11.pdf/$file/rule11.pdf (last visited Dec. 27, 2005).
19 Id.
20 David Rauma & Thomas E. Willging, Report of a Survey of United States District Judges' Experiences and Views Concerning Rule 11, Federal Rules of Civil Procedure (Federal Judicial Center 2005), available at www.fjc.gov/public/home.nsf/autoframe?openform&url_r=pages377 (last visited Dec. 27, 2005).
21 Id.
22 Id.
23 For an overview of the symposium papers, see Georgene M. Vairo, Forward, 37 Loy. L.A. L. Rev. 516-545 (2004), available at llr.lls.edu/volumes/v37-issue3/documents/vairo.pdf.pdf (last visited Dec. 27, 2005).
24 See Paul D. Carrington & Andrew Wasson, A Reflection on Rulemaking: The Rule 11 Experience, 37 Loy. L.A. L. Rev. 563 (2004), available at llr.lls.edu/volumes/v37-issue3/documents/carrington.pdf.pdf (last visited Dec. 27, 2005); and Yablon, note 12.
25 See Margaret L. Sanner & Carl Tobias, Rule 11 and Rule Revision, 37 Loy. L.A. L. Rev. 573 (2004), available at llr.lls.edu/volumes/v37-issue3/documents/tobias.pdf.pdf (last visited Dec. 27, 2005); and Danielle Kie Hart, "And the Chill Goes On-Federal Civil Rights Plaintiffs Beware: Rule 11 vis-a-vis 28 U.S.C. §1927 and the Court's Inherent Power," 37 Loy. L.A. L. Rev. 645 (2004), available at llr.lls.edu/volumes/v37-issue3/documents/hart.pdf.pdf (last visited Dec. 27, 2005).
26 28 U.S.C. § 1927. "Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." Id.
27 Hart, note 25.
28 Hart, note 25 at 684-85.
29 See Georgene M. Vairo, Rule 11 and the Profession, 67 Fordham L. Rev. 589, 689-90 (1998); and Georgene Vairo, Rule 11 Sanctions, ch. 12 (Richard G. Johnson ed., 3d ed. 2004).
30 George Cochran, The Reality of "A Last Victim" and Abuse of the Sanctioning Power, 37 Loy. L.A. L. Rev. 691 (2004), available at llr.lls.edu/volumes/v37-issue3/documents/cochran.pdf.pdf (last visited Dec. 27, 2005).
31 Id. at 708-711.
32 Peter A. Joy, The Relationship Between Civil Rule 11 and Lawyer Discipline: An Empirical Analysis Suggesting Institutional Choices in the Regulation of Lawyers, 37 Loy. L.A. L. Rev. 765, 797 (2004), available at llr.lls.edu/volumes/v37-issue3/documents/joy.pdf.pdf (last visited Dec. 27, 2005).
33 Id. at 806-14.
34 Richard Johnson, Integrating Legal Ethics & Professional Responsibility with Federal Rule of Civil Procedure 11, 37 Loy. L.A. L. Rev. 819, available at llr.lls.edu/volumes/v37-issue3/documents/johnson.pdf.pdf (last visited Dec. 27, 2005).
35 Id. at 821.
36 Vario, note 21 at n. 86 and accompanying text. This is Vario's simplification of Johnson's figures. Johnson says that there were more than 6,000 decisions under the 1983 version of Rule 11, and more than 2,000 at the time of his inquiry under the 1993 version. Nine "court of appeals opinions have discussed the applicable litigation ethics rules," Johnson says, while 17 district court opinions did. Johnson, at 822.
37 Johnson, note 34 at 822.
38 Vario, note 23 at 541.
39 See, e.g., Yablon, note 12 at 611 (citing the "Common Sense Legal Reforms Act of 1995," H.R. 10, 104th Congress § 205 (1995)).
40 See, e.g., www.house.gov/kolbe/issues/issue_tortreform.htm (last visited Dec. 28, 2005).
41 See "New Coalition Formed to Help Stop Lawsuit Abuse" (May 9, 2005) news release about ATRA at www.atra.org/show/7900.
42 See www.lawsuitabusereform.org/members (last visited Dec. 28, 2005).
43 Id.
44 See So-called 'Lawsuit Abuse Reduction Act' Harms Plaintiffs Who May Have Just Claims (Brayton Purcell 2002-2005), www.braytonlaw.com/news/legisnews/091304_h4571.htm (last visited Dec. 28, 2005).
45 See With Unseemly Speed, AJS Editorial, Nov. 12, 2004, www.ajs.org/ajs/ajs_editorial-template.asp?content_id=354 (last visited Dec. 28, 2005).
46 The AJS editorial indeed begins with a statement that says, among other things, that the Lawsuit Abuse Reduction Act "slights separation of powers." Id.
47 Rauma & Willging, note 20.
48 See Proposal Unfairly Targets Civil Rights Plaintiffs and Chills Meritorious Claims at www.atla.org/pressroom/FACTS/frivolous/rule11.aspx (modified Oct. 17, 2005).
49 See Communication from the Chief Justice of the United States Supreme Court Transmitting Amendments to the Federal Rule of Civil Procedure and Forms, pursuant to 28 U.S.C. § 207, reprinted in 146 F.D.R. 402. Under 28 U.S.C. § 2072(a): "The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals." Also see Georgeanne Vario, 2 Rule 11 Sanctions, § 1.108(e) (Richard G. Johnson, ed., 3d ed. 2004) (explaining the process of the Advisory Committee and Judicial Conference concerning amendments and hearings that preceded the 1993 version of Rule 11); and Paul D. Carrington & Andrew Wasson, A Reflection on Rulemaking: The Rule 11 Experience, note 24.
50 For an article calling for total elimination of Rule 11, see Michael J. McNamara, Let's Deep-Six Rule 11, The Hennepin Lawyer (July-August 1991), available at www.hhpandm.com/Lets_Deep-Six_Rule_11.pdf (last visited Dec. 28, 2005). For an article that opposes the Lawsuit Abuse Reduction Act, see Christopher M. Fairman, A frivolous new bill ignores lessons learned from Rule 11, Legal Times, June 13, 2005, available at http://moritzlaw.osu.edu/faculty/docs/fairman-house-follies.pdf (last visited Dec. 28, 2005). For an article arguing in favor of current Rule 11, which does not mandate discipline in every case where a federal judge imposes sanctions, see Peter A. Joy, note 32.
JOURNAL OF THE MISSOURI BAR
Volume 62 - No. 1 - January-February 2006