ABA STANDARDS GUIDELINES (JPML 6-1988)

Section of Litigation

Trial Practice Committee

Jerold S. Solovy, Esq.

Committee Chair

Rule 11 Subcommittee

Alvin K. Hellerstein, Esq.

Subcommittee Chair

Gregory P. Joseph, Esq.

Drafting Committee Chair

Professor Margaret A. Berger

Jerome Gotkin, Esq.

Standish F. Medina, Jr., Esq.

Professor Maurice Rosenberg

Professor Jeffrey W. Stempel

Professor Georgene M. Vairo

Professor Ettie Ward

Drafting Committee Members

U.S.C. Title 28 former:

§ 381 (Preliminary injunctions and temporary restraining orders).

§ 762 (Suit against the United States).

U.S.C., Title 28, former § 829 (now § 1927) (Costs; attorney liable for, when) is unaffected by this rule.

Rule 11 imposes a continuing obligation on the signer to update, correct or withdraw any pleading, motion or other paper which, when signed, satisfies the requirements of the Rule if the signer later learns that there is no reasonable basis for the previously asserted position.

a. the amount of time that was available to the signer to investigate the facts;

b. the complexity of the factual and legal issues in question;

c. the extent to which pre-signing investigation was feasible;

d. the extent to which pertinent facts were in the possession of opponents or third parties, or otherwise were not readily available to the signer;

e. the knowledge of the signer;

f. the extent to which counsel relied upon his or her client for the facts underlying the pleading, motion or other paper;

g. the extent to which counsel had to rely upon his or her client for the facts underlying the pleading, motion or other paper;

h. whether the case was accepted from another attorney and, if so, at what stage of the proceedings;

i. the extent to which counsel relied upon other counsel for the facts underlying the pleading, motion or other paper;

j. the extent to which counsel had to rely upon other counsel for the facts underlying the pleading, motion or other paper;

k. the resources reasonably available to the signer to devote to the inquiry; and

l. the extent to which the signer was on notice that further inquiry might be appropriate.

i. the availability of alternate sources of information;

ii. the character of the client's knowledge, including whether it is firsthand, derivative or hearsay in nature;

iii. the plausibility of the client's account;

iv. the history and duration of the relationship between the attorney and the client;

v. the extent to which the attorney questioned the client; and

vi. the other factors considered by the court in determining whether a reasonable inquiry into fact has been made (Standard (D)(5),supra).

i. the availability of alternate sources of information (including the client);

ii. the basis of relied-upon counsel's knowledge, including whether it is firsthand, derivative or hearsay in nature;

iii. the plausibility of the factual account;

iv. the respective roles of counsel in the litigation (e.g., local counsel, lead counsel, forwarding counsel);

v. the respective expertise of relying counsel and of counsel on whom reliance is placed;

vi. the history, duration and nature of the relationship between counsel;

vii. the extent to which the signer questioned counsel upon whom reliance was placed concerning the nature and scope of the latter's inquiry into fact; and

viii. the other factors considered by the court in determining whether a reasonable inquiry into fact has been made (Standard (D)(5),supra).

a. the amount of time that was available to the signer to research and analyze the relevant legal issues;

b. the complexity of the factual and legal issues in question;

c. the clarity or ambiguity of existing law;

d. the plausibility of the legal position asserted;

e. whether the signer is an attorney orpro selitigant;

f. the knowledge of the signer;

g. whether the case was accepted from another attorney and, if so, at what stage of the proceedings;

h. the extent to which counsel relied upon other counsel to conduct the legal research and analysis underlying the position asserted;

i. the extent to which counsel had to rely upon other counsel to conduct the legal research and analysis underlying the position asserted;

j. the resources reasonably available to the signer to devote to the inquiry; and

k. the extent to which the signer was on notice that further inquiry might be appropriate.

i. the plausibility of the legal position asserted;

ii. the respective roles of counsel in the litigation (e.g., local counsel, lead counsel, forwarding counsel);

iii. the respective expertise of counsel;

iv. the history, duration and nature of the relationship between counsel;

v. the extent to which the signer questioned counsel upon whom reliance was placed concerning the nature and scope of the latter's inquiry into law; and

vi. the other factors considered by the court in determining whether a reasonable inquiry into the law has been made (Standard (D)(12),supra).

a. whether the signer has offered arguments in support of the extension, modification or reversal of existing law;

b. the legal sufficiency and plausibility of those arguments;

c. the creativity, novelty or innovativeness of those arguments;

d. any other objective indication that the signer sought the extension, modification or reversal of existing law;

e. the candor and adequacy of the discussion of existing law, including adverse precedent;

f. the clarity or ambiguity of existing law;

g. the nature of the case, including whether constitutional doctrines are implicated; and

h. the danger of chilling either (i) the enthusiasm or creativity of counsel or (ii) reasonable efforts to extend, modify, or reverse existing law.

A pleading, motion or other paper that is well grounded in fact and law does not violate the improper purpose clause regardless of the signer's subjective intent.

a. Liability for a Rule 11 violation extends beyond a signing attorney to other members of his or her law firm.

b. The liability of other members of the firm exists only to the extent that the pertinent court papers were signed and served or filed in violation of Rule 11 while the offender was a member of the firm; it does not extend to other papers.

a. a reprimand of the offender;

b. mandatory continuing legal education;

c. a fine;

d. an award of reasonable expenses, including reasonable attorneys' fees, incurred as a result of the misconduct;

e. reference of the matter to the appropriate attorney disciplinary or grievance authority;

f. an order precluding the introduction of certain evidence;

g. an order precluding the litigation of certain issues;

h. an order precluding the litigation of certain claims or defenses;

i. dismissal of the action;

j. entry of a default judgment;

k. injunctive relief limiting a party's future access to the courts; and

l. censure, suspension or disbarment from practicing before the forum court, subject to applicable rules or statutes.

a. deterring dilatory or abusive litigation tactics by the same offender and others;

b. imposing punishment for deserving misconduct;

c. compensating an offended person for some or all of the reasonable expenses incurred by reason of the misconduct;

d. alleviating other prejudice to an offended person resulting from the misconduct, including prejudice to that person's litigation positions; and

e. streamlining litigation and bringing about economies in the use of judicial resources by curtailing frivolous and abusive practices.

a. the good faith or bad faith of the offender;

b. the degree of willfulness, vindictiveness, negligence or frivolousness involved in the offense;

c. the knowledge, experience and expertise of the offender;

d. any prior history of sanctionable conduct on the part of the offender;

e. the reasonableness and necessity of the out-of-pocket expenses incurred by the offended person as a result of the misconduct;

f. the nature and extent of prejudice, apart from out-of-pocket expenses, suffered by the offended person as a result of the misconduct;

g. the relative culpability of client and counsel, and the impact on their privileged relationship of an inquiry into that area;

h. the risk of chilling the specific type of litigation involved;

i. the impact of the sanction on the offender, including the offender's ability to pay a monetary sanction;

j. the impact of the sanction on the offended party, including the offended person's need for compensation;

k. the relative magnitude of sanction necessary to achieve the goal or goals of the sanction;

l. burdens on the court system attributable to the misconduct, including consumption of judicial time and incurrence of juror fees and other court costs;

m. the degree to which the offended person attempted to mitigate any prejudice suffered by him or her;

n. the degree to which the offended person's own behavior caused the expenses for which recovery is sought;

o. the extent to which the offender persisted in advancing a position while on notice that the position was not well grounded in fact or warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and

p. the time of, and circumstances surrounding, any voluntary withdrawal of a pleading, motion or other paper.

i. the time and labor required;

ii. the novelty and difficulty of the questions involved;

iii. the skill requisite to perform the legal service properly;

iv. the customary fee;

v. whether the fee is fixed or contingent;

vi. time limitations imposed by the client or the circumstances;

vii. the amount involved and the results obtained;

viii. the experience, reputation and ability of the attorneys;

ix. awards in similar cases; and

x. the other factors set forth in Standard (L)(6),supra.

a. the severity of the sanction under consideration;

b. the interests of the alleged offender in having a sanction imposed only when justified;

c. the risk of an erroneous imposition of sanctions relative to the probable value of additional notice and hearing;

d. the interest of the court in the efficient use of the judicial system, including the fiscal and administrative burdens that additional procedural requirements would entail;

e. whether the sanctions at issue were sought by a party or are being consideredsua sponteby the court;

f. if the sanctions were sought by a party, the type of sanction sought;

g. the type of sanction under consideration by the court;

h. whether the alleged offender was notified, or is otherwise aware, that sanctions are under consideration, and the nature of those sanctions;

i. whether the sanction under consideration rests on a factual finding, such as a finding of bad faith on the part of the alleged offender;

j. whether the judge imposing or considering the sanction presided over the proceedings and is the same judge before whom the offense was committed;

k. whether the alleged offender has been provided an opportunity to be heard before sanctions issued;

l. whether the alleged offender will be provided an opportunity to be heard after sanctions issued;

m. whether counsel, client or both are the target of the proposed sanction, and the impact of the sanctions proceedings on the attorney-client relationship.

a. Once an action is dismissed, the court loses all jurisdiction and is precluded from entering an award of sanctions.

b. Following the entry of judgment, no sanctions may be imposed.

a. factual determinations are reviewed under the clearly erroneous standard;

b. the legal conclusion that the facts constitute a violation of the Rule is reviewedde novo;and

c. the appropriateness of the sanction imposed is reviewed under the abuse-of-discretion standard.