By: Jeff Goland
Courts are ultimately responsible for sanctioning lawyers for
abuse of the legal system and for filing baseless claims,
pleadings, and motions. Federal courts have both the inherent
power and statutory authority to sanction lawyers for frivolous
conduct. In recent decades, however, the “weapon of choice”
for judicial imposition of sanctions has been Rule 11 of the
Federal Rules of Civil Procedure. Whereas other remedies
require a showing of bad faith as a prerequisite for sanctions,
Rule 11 authorizes sanctions on the basis of conduct found to be
unreasonable. Since Rule 11 was amended in 1983, the general
understanding among courts and commentators has been that an
“unreasonable” submission will subject the offender to sanctions.
Recently, however, in In re Pennie & Edmonds LLP, a majority of
a panel of the United States Court of Appeals for the Second
Circuit held that attorneys could not be sanctioned in a
court-initiated post-trial proceeding in the absence of a showing
of subjective bad faith. According to the Second Circuit, a
bad faith requirement effectively counterbalances the risk that
some attorneys may withhold submissions that have plausible
evidentiary and legal support out of fear that their conduct will
be found unreasonable by the trial judge.
This Comment argues that the Second Circuit erred in imposing a
bad faith requirement as a prerequisite for court-initiated
post-trial Rule 11 sanctions. It submits that neither the
express language, historical development, purpose of Rule 11, nor
the policy considerations advanced by the court support the
imposition of a separate mens rea element for any subset of Rule 11
sanctions. Application of two distinct standards for
punishing the same behavior, depending on whether the sanction
proceedings are on-motion or sua sponte, will bring confusion to
the operation of Rule 11, encourage meritless filings, and have an
adverse effect on attorneys who act in subjective good faith.
Furthermore, this Comment submits that the likely ramification of
the Second Circuit’s holding is a limitation, and a possible
elimination, of district courts’ power to sanction attorneys for
unreasonable conduct associated with the filing of motions,
pleadings, and other papers. Such a result may hamper judges’
power to control their courtrooms and may greatly reduce the role
of the judiciary in curbing unprofessional conduct.
Full text version available for download
in PDF format.