The Tricky Nature of Seeking Sanctions Against Opposing Counsel

Caution: A motion for sanctions against opposing counsel should be utilized only with the right set of facts.

By David D. Ernst

Caution: A motion for sanctions against opposing counsel is not going to be a favored motion and should be utilized only with the right set of facts. At a minimum, the opposition will vehemently argue that it chills zealous advocacy, a protected right and duty of lawyers.

Federal rules permit an award of sanctions against opposing counsel for asserting claims that have no legal or factual merit, according to Federal Rules of Civil Procedure (FRCP) Rule 11 and 29 U.S.C. §1927. Obtaining such an award would certainly send a message to an unprincipled attorney and bring a satisfying sense of justice, not to mention potential reimbursement of the costs incurred. However, it is perhaps better to use the threat of sanctions to compel, cajole, or convince opposing counsel early on in the litigation to drop claims that have no merit before significant expenses are incurred, which may never be recovered.

Most states have some version of FRCP Rule 11, which provides that an attorney who signs a pleading certifies that, after a reasonable inquiry, the pleading or motion is “well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose.”

It is important to know the laws for the appropriate states in this area. For example, California, Florida, New York, and Texas have similar statutes that impose personal liability on attorneys who assert claims that objectively have no legal or factual merit. It also is important to know what would be deemed a “frivolous” claim. Further, under 28 U.S.C. §1927, an attorney is liable for conduct that, viewed objectively, manifests either intentional or reckless disregard for the attorney’s duties as an officer of the court.

While an entire complaint (or cross-complaint) may be frivolous from the start, it is more common to have opposing counsel assert a meritless cause of action. These are sometimes thrown in to create leverage in litigation. For example, fraud causes of action are added to run-of-the-mill negligence or breach-of-contract cases to add tort or punitive damages to the claim. This still can subject the attorney to a Rule 11 violation.

Of course traditional motions, such as the filing of a motion for failure to state a claim or a demurrer, can attack these claims. However, it is not always possible to dispose of frivolous claims at the early pleading stage, as all material factual averments and all inferences fairly deducible from those facts are presumed to be true. A more substantive pretrial attack, a motion for summary judgment, or summary adjudication could dispose of a frivolous or fraudulent claim, but these motions are hard to win. It takes only slight evidence to create a triable issue of fact, which is not a high burden to overcome. Thus, it may not be until trial that the victim of a frivolous or false claim gets to present the overwhelming weight of his case to the trier of fact. By this time, the fees and costs have certainly mounted.

Most cases settle before trial, particularly if they cannot be disposed of by a pretrial motion. Where warranted, a motion for sanctions against a party and opposing counsel, or even the threat of such motion, could be a proper tool to facilitate resolution of the claim.

Obviously, the pressure of facing personal sanctions puts the recalcitrant attorney in a difficult place. Candidly, a reasonable lawyer would not want to advocate a frivolous claim, especially if there are other viable causes of action. Nonetheless, threatening sanctions against both the client and the attorney gives the attorney an opportunity and incentive to advise the client that they should re-evaluate the strategy of pursuing that particular unmeritorious claim.

The rules contemplate that the offending attorney be given an opportunity to re-evaluate the frivolous filing. Federal courts have recognized that a motion for sanctions under Rule 11 must be served on the offending party for a period of safe harbor, at least 21 days prior to the entry of final judgment or judicial rejection of the offending contention.

Some states also have their own safe harbor provisions. For example, California and Florida have a 21-day safe harbor period that requires the party seeking sanctions to serve on the opposing party, without filing or presenting it to the court, a notice of motion specifically describing the sanctionable conduct. During this time, the offending document may be corrected or withdrawn without penalty.

Before filing this type of motion, it is a good practice to make more than one effort to convince the offending lawyer to recognize the error of his ways before coming to court. You should document those attempts, as well; a busy federal or state judge will appreciate those efforts. Once you decide to file the motion for sanctions against the attorney, make sure the attorney has the proper safe harbor period as prescribed by applicable federal or state law. Also, try to time the motion to be heard with the underlying substantive papers, e.g., the demurrer, motion for summary judgment/adjudication, etc.

While the motion is pending, you may then want to contact counsel one more time to see if his position has changed or if the case can be resolved.   


David D. Ernst, Esq., is a partner with Backus & Ernst LLP. He has been a CLM and Insurance Fraud Committee Member since 2012 and can be reached at (213) 777-1779, dernst@belawca.com.

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