[Updated June 7, 2019, see below.]
A year and a half ago, I wrote a post, Philosophy Explains How Legal Ethics Turn Lawyers Into Liars, discussing a couple situations in which I witnessed my opposing counsel tell the judge an outright lie about the case.
I can’t say that I’m surprised to find that this problem hasn’t disappeared since that post, and I continue to devote many hours responding to opposing counsels’ objectively baseless motions. Generally, these motions aren’t quickly or crudely written; rather, they tend to be quite carefully crafted and polished to create the appearance of a legitimate issue for resolution, a patchwork of quotes taken out of context from distinguishable cases.
Most notably, in a recent example, the baseless motion (for summary judgment) made no effort to address the central issue, which was that the defendant had, for the past two years, engaged in a procedural tactic that one Circuit Court has called “dishonest,” a procedural tactic that automatically waived their argument. Indeed, our own federal appellate court, the Third Circuit, examined that exact same procedural tactic just last year and had specifically ruled against it; my opposing counsel found that case and cited it for a completely different purpose, ignoring the actual reasoning and holding, which rendered their motion frivolous.
I suppose I could have filed a one-page response simply citing that case correctly, with a couple opinions from other Circuits – the unanimous rule across country, including the Restatement rule, is to reject this “dishonest” tactic – but I don’t take briefing on dispositive motions lightly. More to point, no one should taking briefing lightly; as I have said before, one of the worst things you can do is listen to the Supreme Court and hamper your own brief by voluntarily dropping meritorious issues, and so I addressed every issue raised by the wayward brief, each in detail, each with appropriate citations.
I have no doubt their dubious motion for summary judgment will be denied. Here’s the question: do I threaten my opponent with Rule 11 sanctions for wasting my time and the Court’s? I take it as a point of pride to actually know what is and what is not sanctionable — see, e.g. my post on sanctions for deposition coaching of witnesses — so I’m not going to send that threat unless I think there’s a real chance of sanctions actually being awarded. And thus the question is: can you get sanctions for having to respond to an opponent’s brief that failed to address directly contradictory precedent?
Let’s start with the basics. Rule 3.3(a)(2) of the Model Rules of Professional Conduct says, “A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” (Irrelevant text omitted.) Rule 11 of the Federal Rules of Civil Procedure says, “By presenting to the court a written motion an attorney certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” (Irrelevant text omitted.)
Nearly twenty years ago, Daisy Hurst Floyd tried to figure out the rule in Candor Versus Advocacy: Courts’ Use of Sanctions to Enforce the Duty of Candor Toward the Tribunal, 29 GA. L. REV. 1035, 1058 (1995), but ended up concluding “Courts have not been consistent … on Rule 11 sanctions with Model Rule 3.3 standards.”
I picked up my trusty copy of Gregory Joseph’s Sanctions: The Federal Law of Litigation Abuse, and it referenced the two most widely cited cases, Jorgenson v. County of Volusia, 846 F.2d 1350, 1351-52 (11th Cir. 1988) and Golden Eagle Distributing Corp. v. Burroughs Corp., 801 F. 2d 1531 (9th Cir. 1986). Jorgenson affirmed sanctions against a lawyer for failing to cite adverse precedent in the context of an ex parte proceeding. Accord Maine Audubon Soc. v. Purslow, 907 F. 2d 265 (1st Cir. 1990). Golden Eagle, in turn, overturned a District Court’s sanction order on the same grounds, first agreeing that “[a] lawyer should not be able to proceed with impunity in real or feigned ignorance of authorities which render his argument meritless,” citing Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 205 (7th Cir.1985), but then rejecting sanctions, reasoning that “neither Rule 11 nor any other rule imposes a requirement that the lawyer, in addition to advocating the cause of his client, step first into the shoes of opposing counsel to find all potentially contrary authority, and finally into the robes of the judge to decide whether the authority is indeed contrary or whether it is distinguishable.”
Joseph’s Sanctions is current to this year, he just hasn’t revisited that issue. So I looked elsewhere, and found J. Lyn Entrikin Goering in 2005 collecting some of the relevant case law for an article on the “The Surreal Paradox Of No-Citation Rules And The Ethical Duty Of Candor.” Her footnotes are perhaps the most comprehensive discussion I’ve seen, leading me to the following cases:
- Matter of Hendrix, 986 F. 2d 195 (7th Circuit 1993)(“The court does not ask whether the appeal might have been nonfrivolous if presented differently, with arguments and authorities to which the appellant in fact never alluded. If the appeal is blocked by authorities that the appellant ignored, the appellant is sanctioned without inquiry into whether the authorities if acknowledged might have been contested. … [Further,] Although as we noted in Thompson v. Duke, 940 F.2d 192, 196 n. 2 (7th Cir.1991), the circuits are divided (and we have not taken sides) on whether a failure to acknowledge binding adverse precedent violates Fed.R.Civ.P. 11, if Atlanta Casualty’s counsel knowingly concealed dispositive adverse authority it engaged in professional misconduct. ABA Model Rules of Professional Conduct Rule 3.3(a)(3) (1983). The inference would arise that it had filed the appeal for purposes of delay, which would be an abuse of process and thus provide an additional basis for imposition of sanctions under Fed.R.App.P. 38 (“damages for delay”)”).
- Precision Specialty Metals, Inc. v. US, 315 F.3d 1346 (Fed. Cir. 2003)(“Other courts of appeals that have considered the application of Rule 11 to attorney-case-citation issues have reached differing results. … In some of the cases that have rejected sanctions, the attorney’s alleged violation was failure to discover precedents that negated his position. See, e.g., United States v. Stringfellow, 911 F.2d 225, 227 (9th Cir.1990). … In the present case, however, Walser was sanctioned not for failure to discover pertinent precedents or to cite adverse decisions. She violated Rule 11 because, in quoting from and citing published opinions, she distorted what the opinions stated by leaving out significant portions of the citations or cropping one of them, and failed to show that she and not the court has supplied the emphasis in one of them. We know of no appellate decision holding that Rule 11 does not cover such misstatements of legal authority. Cf. Teamsters Local No. 579 v. B & M Transit., Inc., 882 F.2d 274, 280 (7th Cir.1989) (upholding Rule 11 sanction for “misstating the law”); Borowski v. DePuy, Inc., 850 F.2d 297, 304-05 (7th Cir.1988) (Counsel’s “ostrich-like tactic of pretending that potentially dispositive authority against [his] contention does not exist [is] precisely the type of behavior that would justify imposing Rule 11 sanctions.” (internal citation omitted)).
- Barth v. District of Columbia, 15 F.3d 1159 (D.C. Cir. 2003)(reversing sanctions because the cases omitted were not “controlling,” with strong dissent from J. Henderson suggesting sanctions should have been affirmed).
- Mary Ann Pensiero, Inc. v. Lingle, 847 F. 2d 90 (3rd Cir. 1998)(reversing sanctions because counsel had no duty to label his argument as seeking to overrule existing law, and questioning “duty of candor,” but declining to answer whether a failure to cite adverse precedent is sanctionable: “We agree with those observations and hold that counsel may not be found to have violated Rule 11 merely for failing to ‘label’ the argument advanced. … Of course, this is not to suggest that prudent attorneys should avoid alerting the court when the position they advocate clearly departs from settled and controlling legal precedent. Such argument identifications might illuminate the thoroughness of the pre-filing legal investigation. We decide here only that counsel’s errors in identifying their approach do not infringe on Rule 11.”
With those great cites in hand, I looked a little deeper into the Circuit Split and found… not much of use, at least not in the federal courts, and nothing jumped out at me from the state courts. There are myriad law review articles talking about the candor issue; in a Yale Journal of Law and Technology article with a regrettably silly name, Ellie Margolis concluded “Perhaps because of the difficulty in determining when failure to cite adverse authority is due to intentional deception, it is extremely rare for Rule 3.3 to be the basis of a disciplinary action,” citing as an example Massey v. Prince George’s County, 918 F. Supp. 905 (D. Maryland 1996), where the government’s lawyers totally failed to research a basic issue, and avoided — just barely avoided, but nonetheless avoided — sanctions. But there’s nothing solid on the case law. As interesting as the law review issues are, as a practitioner what I really need to know is the availability of sanctions.
Moving to today, Golden Eagle is indeed the end of the road in the 9th Circuit — see, e.g., Rodriguez v. County of Stanislaus, 799 F. Supp. 2d 1131 (E.D. Cal. 2011)(denying sanctions where plaintiff completely misread a statute, citing Golden Eagle to hold “Rule 11 permits sanctions only when the “pleading, motion, or other paper” is frivolous, not when one argument is frivolous.”) — but it appears to be the minority rule. Golden Eagle was dependent in part upon a conclusion that Rule 11 only applied where the whole pleading, motion, or legal paper work baseless, and the majority of federal courts have rejected that part of Golden Eagle. See Hanson v. Loparex, Inc. (D. Minn. 2011)(collecting cases holding “Rule 11 permits sanctions where only a part of a pleading fails to meet its requirements.”)
In my humble opinion, there’s no reason sanctions should be inherently off-limits: the conduct is objectively unreasonable and violates the text of Rule 11, because the “legal contentions” are not “warranted,” not without some reference to the controlling precedent and an explanation as to why it should be overruled. But here’s the final problem with sanctionable conduct: the cost is inherently asymmetrical, in favor of wealthy defendants. I, as a contingent fee lawyer, don’t have a big corporate client that sees litigation as a war of attrition and so is more than happy to pay me to file as many motions as possible. I file motions only when they’re useful to the case; as common as sanctionable conduct is, I usually have better ways to serve my clients than to see what our judge thinks about these fascinating issues, and so I generally file for sanctions only when needed to deter repeated conduct. We’ll know if there’s need for deterrence in the latest case when their reply is filed; will they admit fault, or will they double down?
Update, June 7, 2019: I originally wrote this post nearly seven years ago, but it continues to draw interest. A recent issue in the Ninth Circuit prompted me to re-consider it. In that case, the Ninth Circuit asked BNSF’s counsel to explain how their edits to language from various cases cited “candidly represents” the actual holding of the cases. Their response isn’t due yet.
A few years after my post, a judge in the Southern District of California collected various cases highlighting the duty to identify adverse precedent, and the availability of sanctions, including sua sponte:
Under the rules of practice applicable in federal courts and the courts of virtually every state, an attorney may not knowingly fail to disclose controlling authority that is directly adverse to the position he or she advocates. See, e.g., Cal. Rules Prof. Conduct, Rule 5-200(B) (counsel shall not mislead the court regarding the facts or law); ABA Model Code Prof. Responsibility, DR 7-106(B)(1) (lawyer shall disclose to the court legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel); ABA Model Rules Prof. Conduct, Rule 3.3 (lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel). The Ninth Circuit has observed that this rule “is an important one, especially in the district courts, where its faithful observance by attorneys assures that judges are not the victims of lawyers hiding the legal ball.” Transamerica Leasing, Inc v. Compania Anonima Venezolana de Navegacion, 93 F.3d 675, 675-76 (9th Cir.1996). Ensuring candor toward the court is especially important when, as here, both / / / parties advocate a particular result, and the pleadings lack the usual adversarial sharpness that characterize motion practice.
Examples abound of courts approving disciplinary action against attorneys who knowingly fail to disclose adverse authority. See, e.g., Southern Pacific Transp. Co. v. Public Utilities Comm’n. of State of Cal., 716 F.2d 1285, 1291 (9th Cir.1983) (characterizing an attorney’s failure to acknowledge controlling precedent as “a dereliction of [its] duty to the court …”); United States v. Stringfellow, 911 F.2d 225, 226 (9th Cir.1990) (where counsel fails to cite controlling case law that renders its position frivolous, he or she “should not be able to proceed with impunity in real or feigned ignorance of them, and sanctions should be upheld.”); Malhiot v. Southern California Retail Clerks Union, 735 F.2d 1133, 1138 (9th Cir.1984) (sanctioning party sua sponte under 28 U.S.C. § 1927 for deliberately misquoting statute); Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 212 (9th Cir.1987) (awarding sanctions in part because argument on appeal ignored controlling Supreme Court authority); McEnery v. Merit Sys. Protection Bd., 963 F.2d 1512, 1516-17 (Fed.Cir.1992) (awarding sanctions on appeal for failing to reference or discuss controlling precedent); DeSisto College, Inc. v. Line, 888 F.2d 755, 766 (11th Cir.1989) (noting that counsel must acknowledge the binding precedent of the circuit). These cases recognize that while courts should encourage attorneys to assert novel legal theories, attorneys must nonetheless acknowledge authority that is directly adverse to their positions. Counsel are reminded of these standards going forward.
United States v. Blondeau, No. 10-CR-3871-LAB, at *2-3 (S.D. Cal. Mar. 15, 2016).
Similarly, a Magistrate Judge in the Southern District of Ohio was irate when seven unpublished cases in the same District were not brought to his attention. Chinn v. Jenkins, Case No. 3:02-cv-512, at *9 (S.D. Ohio Jan. 19, 2018) (“The Magistrate Judge here finds the failure to cite the prior cases a disappointing lack of candor and cautions against its repetition. To properly fulfill its judicial function, the Court needs to be in dialogue with recent opinions of other judges on the same topic, whether those opinions are binding or merely persuasive.”)
It still seems quite rare for courts to actually grant sanctions rather than just admonishing counsel, and so my perspective is still the same as it was in 2012: if opposing counsel fails to cite adverse precedent (or misconstrues it), that should certainly be pointed out to the court, but a motion for sanctions is unlikely to be granted.