Volume 37 Number 3 -- Winter 2004

TABLE OF CONTENTS

SYMPOSIUM

HAPPY (?) BIRTHDAY RULE 11

FOREWORD

by Georgene M. Vairo

Rule 11 became a metaphor for the problems and promise inherent in our civil justice system: To what extent can we afford courts open to all who have a perceived grievance? Do we need a potent tool to weed out the filings of those who may not be practicing at the highest levels of professionalism? Will we sacrifice the evolution of new legal theories if we use such a tool too aggressively? A distinguished cast of authors has provided us with their thoughts about Rule 11 at the time of its amendments' tenth and twentieth birthdays. Most believe Rule 11 has now largely achieved its purposes. Others believe the 1983 version of Rule 11 opened a Pandora's box: even though the 1993 amendments cured many of the problems with the administration of Rule 11, judges may be using alternative sanctions tools in troubling ways. Finally, two of our authors argue that Rule 11 can be reformed to achieve the higher purpose of enforcing the Model Rules of Professional Conduct. This Symposium is important because it provides a variety of reflections on the importance of the rule, and whether it is or ever can be a positive force in improving the administration of civil justice.

A Reflection on Rulemaking: The Rule 11 Experience

by Paul D. Carrington and Andrew Wasson

Professor Paul Carrington, senior author to this Article, and Andrew Wasson provide a superb overview of the rulemaking experience of Rule 11. Professor Carrington's intimate involvement in the rulemaking process as Reporter to the Advisory Committee on Civil Rules is evident in his excellent analysis of the important developments surrounding Rule 11. His article provides an inside look at the impact of the revision process on the current version of Rule 11. In so doing, he details the criticisms surrounding the 1983 version of the rule that eventually led to the changes reflected in the 1993 version. Ultimately, Professor Carrington concludes that the 1993 version of Rule 11 is thus far the most effective.

Rule 11 and Rule Revision

by Margaret L. Sanner and Carl Tobias

In this article, Margaret L. Sanner and Carl Tobias take a critical look at the Rule 11 experience, as well as rulemaking in general. In contrast to Professor Carrington and Mr. Wasson, Ms. Sanner and Professor Tobias discuss the dangers of ad hoc rulemaking without the benefit of empirical data. They argue that when rules are adopted without due consideration of the reality of practice, unfortunate and unintended consequences may result.

Hindsight, Regret, and Safe Harbors in Rule 11 Litigation

by Charles Yablon

This Article begins by surveying the evidence that the 1993 amendments have been successful in substantially reducing both frivolous litigation and abusive Rule 11 motions. Professor Yablon concludes that considerations of hindsight and regret have played a major role in that success. By effectively prohibiting Rule 11 motions from being made after the merits of the underlying claims have been adjudicated, the 1993 safe harbor provision deprived movants of the powerful "hindsight effect" under which judges, having just dismissed a case as non-meritorious, were then asked whether the claim should never have been brought in the first place. By decreasing the likelihood of hindsight bias and increasing the ability of certain categories of litigants to act on their feelings of regret over filing baseless or frivolous claims, the 1993 amendments, particularly the safe harbor provision, have improved the efficacy of Rule 11 without increasing frivolous filings.

And the Chill Goes On-Federal Civil Rights Plaintiffs Beware: Rule 11 vis-à-vis 28 U.S.C. § 1927 and the Court's Inherent Power

by Danielle Kie Hart

In this article, Professor Hart explores the standards for imposing sanctions under Rule 11, section 1927 and the court's inherent power. Professor Hart then tests her hypotheses that the 1993 amendments have led to more activity under section 1927 and the inherent power of authority by setting forth the results of her research on the sources of sanctioning power after the 1993 amendments. Professor Hart's review of reported cases shows not only that Rule 11 activity has decreased and that alternate sanctioning activity has increased, but also that in many cases the defendants in civil rights cases have used the alternative devices because they had failed to comply with the Rule 11 safe-harbor.

The Reality of "A Last Victim" and Abuse of the Sanctioning Power

by George Cochran

In 1983, the Advisory Committee on the Federal Rules of Civil Procedure took an ill-considered, precipitous step when it amended Rule 11 to impose mandatory sanctions on counsel, including reasonable attorneys' fees. This amendment led to a flood of satellite litigation. The impeachment proceedings of Judge James Peck and the Rule 11 sanctioning of Professor Barry Nakell illustrate the injustices such a rule performs. In this article, Professor George Cochran praises the 1993 amendments to Rule 11, most notably the "safe-harbor" provision, which facilitate arguing for a change of law, provide a fairer standard for attorney liability, and place greater constraints on judges imposing sanctions. Turning to sanctions under 28 U.S.C. § 1927, Professor Cochran details the current conflict in circuits with respect to standards for attorney liability. Presuming a future grant of certiorari, the article sets forth the legislative history of the 1980 amendment and recommends that the Court put in place a new test compatible with the "serious and studied disregard of justice" standard contemplated by Congress.

Sanctions Under Rule 11: A Cross-Circuit Comparison

by Jerold S. Solovy, Norman M. Hirsch, Margaret J. Simpson, and Christina T. Tomaras

This article compares the circuit courts' approaches to Federal Rule of Procedure 11: when a paper, including a complaint, may be sanctioned for the presenter's improper purpose, when safeguards afforded an attorney or party before the imposition of Rule 11 sanctions including the standard to be applied when a court imposes sanctions on its own initiative, and the safe harbor provision. The authors agree with the majority of circuits that an objective standard should apply to Rule 11 inquiries, and that the safe harbor provision is jurisdictional and strictly apply to each sanctions motion. On the issue of Rule 11 improper purpose sanctions, the authors recommend an amendment that makes clear that nonfrivolous complaints and other papers may not be sanctioned for improper purpose.

The Relationship Between Civil Rule 11 and Lawyer Discipline: An Empirical Analysis Suggesting Institutional Choices in the Regulation of Lawyers

by Peter A. Joy

In this article, Professor Joy analyzes the relationship between Rule 11 sanctions imposed on lawyers by federal courts and discipline imposed on lawyers by state disciplinary authorities. First, he discusses the history of lawyer regulation. Then, he reviews the use of Rule 11 by the federal courts since 1993 and examines whether there is a correlation between Rule 11 sanctions and subsequent discipline for the same litigation conduct. Finally, because the data demonstrate little correlation between Rule 11 sanctions and subsequent discipline, he evaluates current institutional choices to determine whether discipline should follow more Rule 11 sanctions. Professor Joy concludes that the current system, in which Rule 11 violations do not require mandatory discipline, results from wise institutional choices .

Integrating Legal Ethics & Professional Responsibility with Federal Rule of Civil Procedure 11

by Richard G. Johnson

Attorney Richard G. Johnson examines the impact that the primary litigation ethic rules (A.B.A. Model Rules of Professional Conduct R. 3.1-3.4) have had on Federal Rule of Civil Procedure 11 case law. In so doing, Mr. Johnson discusses the criticism of using Civil Rule 11 to enforce these rules versus referral to the disciplinary system, and he explains why they have generally been separated from Civil Rule 11 analysis as well as the consequences that have flowed there from. Mr. Johnson concludes that the litigation ethic rules should become the Civil Rule 11 standard, and he proposes a revision to that rule, which would integrate legal ethics and professional responsibility law with Civil Rule 11.