Sources of Sanctions

From LegalLanding

There are several sources of authority for sanctions in a lawsuit. Below are some of the more common sources.

17 U.S.C. § 505

Part of U.S. statutes that deal with copyrights, and is not dependent on a finding of bad behavior. Only the party, rather than the attorney pays sanctions, and the prevailing party has the right to make a request for attorney’s fees, creating an exception to the American Rule.

28 U.S.C. § 1927

Only applies to an attorney who multiplies the proceedings unreasonably and vexatiously – must find willful bad faith.

Rule 11

FRCP Rule 11 requires that all factual allegations are actually grounded in fact after a reasonable investigation, and that all legal contentions are warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing it. The rule does not apply just to complaints; it applies to any paper that is signed other than discovery responses, which are covered by FRCP Rule 26 and FRCP Rule 37. Outside discovery, there are many sources for sanctions.

Rule 11 has probably undergone more changes than any other rule. Before 1983, sanctions were optional. In order to be levied, there had to be a showing of subjective bad faith. Sanctions thus weren’t granted very often and the rule was seen as toothless. In 1983 an objective requirement was added, that there has to be reasonable investigation into the facts and law, and also a provision that a trial court must give sanctions if they were warranted. This made it easier to grant sanctions, so easy that FRCP Rule 12(b)(6) dismissals almost had to be accompanied by them. Judges did not like the rule because lawyers would appeal the sanctions, creating large amounts of satellite litigation.

In 1993 the current rule was adopted, making multiple changes. Sanctions are now optional. The types of sanctions were also clarified. No longer would there be fee-shifting awards. Sanctions would range from public reprimand to filing a complaint with the bar to requiring an offending lawyer to go to civil procedure class. Monetary damages are now presumptively supposed to go to the court. Furthermore, the court can determine who to sanction: the lawyer, his firm, the client, or any combination.

Rule 11 was also changed to include a safe harbor rule allowing twenty one days after notice of the intention to invoke the rule for the offending party to withdraw the offending material. Although the safe harbor period does not apply when the court invokes Rule 11 under its authority in Rule 11(c)(3), the court does have to allow the lawyer to show cause as to why he should not be sanctioned.

Rule 11 is one of several provisions that regulate truthfulness and good behavior in litigation and pleading. Zuk v. Eastern Pennsylvania Psychiatric Institute (1996) was one of the first cases in which the new Rule 11 was put on display, and it resulted in a somewhat unforgiving judicial attitude toward a wayward lawyer. However, the problem of bad behavior in litigation became severe in late 1990s and early 2000s, suggesting something about the ineffectiveness of Rule 11 in its current form. Courts and bar associations have developed Civility Codes, but they are aspirational, and have no enforcement. Rules of Professional Responsibility have always existed, but they might be ineffective because disbarment or other severe punishments are rare. Right now there is really no good way to make lawyers behave decently toward one another and clients, because rules cannot fix character flaws.

Rule 26(g) (Discovery)

FRCP Rule 26 allows for sanctions and, similar to Rule 11, it applies to signing a discovery request/response that certifies that certain things are true. It applies to the attorney, the party, or both. The request/response cannot be frivolous, interposed for an improper purpose, or unduly burdensome or expensive. Unlike Rule 11, there is no safe harbor provision, and the court must impose sanctions (whereas the court may impose sanctions under Rule 11).

Rule 37 (Discovery)

FRCP Rule 37 is focused solely on sanctions against parties who disobey discovery orders. But first there is the requirement that the party seeking sanctions must show (in writing) a good faith attempt to meet and confer. This cuts down on the court’s work. The rule requires a motion to compel before sanctions can be levied; when a party doesn’t comply with court order, sanctions are levied. There is a role for protective orders. They can be sought after a motion to compel (e.g. to protect psychologist’s notes outside of the relevant time period). Sanctions can include attorney’s fees.

The failure to keep items sought through discovery can lead to sanctions for spoliation. Spoliation is the intentional destruction, mutilations, alteration, or concealment of evidence. Negligence in this regard may be enough fault to justify sanctions.

Court’s inherent power

The Supreme Court has recognized this power, presumably against anyone. This requires a specific finding of bad faith. It should only be used if another rule does not work, and then only rarely because courts do not want to appear too activist. Although we are starting to see more cases where it is used, it is still the least common source of sanctions. This is probably because the power is so vague. It is important that the court make clear the grounds for sanctions and the bases for them (due process). The parties will have been warned that the court’s patience is running out.