University of Baltimore Law Forum Volume 22 Article 2 Number 3 Spring, 1992

1992 Frivolous Filings and the Penalty of Sanctions: The Disparate Impact of Rule 11 Sanctions in the Litigation Process Alan J. Belsky

Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons

Recommended Citation Belsky, Alan J. (1992) "Frivolous Filings and the Penalty of Sanctions: The Disparate Impact of Rule 11 Sanctions in the Litigation Process," University of Baltimore Law Forum: Vol. 22 : No. 3 , Article 2. Available at: http://scholarworks.law.ubalt.edu/lf/vol22/iss3/2

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Frivolous Filings and the Penalty of Sanctions: The Disparate Impact of Rule 11 Sanctions in the Litigation Process

By Alan J. Belsky, Esquire

I. INTRODUCTION order to deny or postpone the signature on any court paper certifies Attorneys are trained to represent enforcement of unquestioned that the signer their clients to the greatest extent of rights. Lawyers have an obli­ has read the pleading, motion, their abilities within the bounds of the gation as officers of the court or other paper; that to the best law and legal ethics. Developments not to indulge in any of these of the signer's knowledge, in­ over the past several years, however, practices. Vexatious litiga­ formation, and belief formed have caused courts to scrutinize more tion and the law's delays have after reasonable inquiry it is closely the conduct of attorneys and to brought the courts in low re­ well grounded in fact and is distinguish zealous from "frivolous") pute in many instances, and warranted by existing law or a legal representation. when the responsibility can be good faith argument for the The number of lawsuits has in­ fixed, remedial action should extension, modification, or creased dramatically in the past twenty betaken. reversal of existing law, and years. 2 This increase in litigation, how­ Members of the legal community that it is not interposed for any ever, has not come without cost to all have expressed concern about the improper purpose, such as to involved. Attorneys are finding it more present state ofaffairs in the litigation harass or to cause unnecessary difficult to maintain control over their process. Unfortunately, their dissatis­ delay or needless increase in practice, and courts are increasingly faction for the most part has been di­ the cost of litigation.4 unable to manage their dockets. Con­ rected at one another and not at the In essence, Rule 11 requires "litigants sequently, litigants are disheartened problem in toto. The plaintiffs' bar is to stop, think and investigate more by the time and expense involved in criticized for bringing lawsuits with­ carefully before serving and filing resolving even the most rudimentary out sufficient factual or legal ground to papers ...."5 issues. support their claims. The defense bar, The Advisory Committee on Civil Pleadings, motions, pretrial discov­ on the other hand, is criticized for Rules - the drafters ofthe 1983 amend­ ery, and costly and lengthy litigation burdening the litigation process by gen­ ments to Rule 11 -- envisioned that have inundated the bench and barto the erating unnecessary pleadings and amended Rule 11 would curtail the so­ point of calling into question whether motions filed only to buy additional called "litigation explosion"by requir­ the litigation process has grown be­ time for their clients, or to make law­ ingthat courts impose sanctions when­ yond manageable bounds. The prob­ suits so expensive that they must be ever Rule 11 was violated. By requir­ lem is aptly described by the United abandoned out of economic necessity. ing imposition of Rule 11 sanctions, States Court of Appeals for the Fourth Ironically, the typical climax to this the Committee sought to limit judicial Circuit in Gullo v. HirsP: costly and burdensome litigation pro­ discretion in finding violations of the While we must be careful to cess is a settlement reached on the rule, which, in turn, would promote assure that courts are always courthouse steps. more consistent and predictable appli­ open to complaining parties, Rule 11 of the Federal Rules of cation of the rule. Unfortunately, the we have an equal obligation to Civil Procedure was amended in 1983 ambiguities of amended Rule 11 have see that its processes are not in an effort to increase lawyers' re­ promoted rather than discouraged ju­ abused by harassing, or by sponsibility to their clients and to the dicial discretion, and have added to the recklessly invoking court ac­ courts when filing any pleading, mo­ litigation explosion by generating thou­ tion in frivolous causes or by tion, or other paper. Amended Rule 11 sands of conflicting court opinions on foot dragging and delaying in provides that the attorney or party's the meaning and application ofRule 11

22.3lfhe Law Forum - 3 to particular conduct. tax disputes - cases which typically advisory committee notes. 2S This Article addresses the opera­ present difficult problems of factual Other courts have held that the tion and some of the shortcomings of proof for the plaintiff. 17 signer's duty is continuous, so that Rule 11 and discusses the disparate Rule 11 does not establish the tim­ developments transpiring at any point impact of Rule lIon the litigation ingforimposingsanctions. Mostcourts during the course of litigation may process. This Article posits that Rule agree, however, that sanctions should make an originally legitimate filing 11 is applied against the plaintiffs' bar be imposed promptly after the offend­ frivolous and may justify imposing more frequently and has the incidental ing conduct to maximize Rule 11 's sanctions if the filing is not revised or effect ofdeterring vigorous advocacy.6 deterrent effect on subsequent abuses. 18 discontinued.26 Even courts which find The objective reasonableness standard Sanctions for frivolous motions are no continuing duty under Rule 11 hold mandated by Rule 11 has discouraged typically assessed at the time of or that Rule 11 is violated when subse­ uniformity in court decisions, and has soon after the motion is ruled on, quent papers ratify or reassert frivo­ created considerable uncertainty in the whereas sanctions for frivolous plead­ lous factual or legal allegations of the minds of attorneys who cannot predict ings are usually assessed after the liti­ original filing. Thus, if the plaintiff whether their conduct is sanctionable. gation has concluded. 19 discovers after the original filing that Sanctions are awarded pursuant to his claim is without legal or factual II. AMENDED RULE 11: AN a motion filed by a party to the action merit, his opposition to a motion for OVERVIEW or by the trial judge sua sponte. Rule summary judgment or dismissal would Amended Rule 11 requires the im­ 11 sanctions have even been imposed violate Rule 11 because it is a new position of "appropriate sanctions" by appellate courts for frivolous ap­ filing which tacitly reasserts the frivo­ when the rule is violated by the attor­ peals,20 although sanctions awards are lous factual or legal basis ofthe origi­ ney or party to the action. Rule 11 is more routinely reversed on appeaPI nal filing,21 therefore distinguishable from other The circuit courts are split over the laws which leave the penalty of sanc­ issue of whether Rule 11 imposes on A. The Signer's Certification tion to the discretion of the court.7 counsel and the parties a "continuing Under Rule 11 Even under Rule 11, however, judges duty" to reevaluate their case as the A signature on any pleading, mo­ retain considerable discretion in deter­ litigation progresses and to discon­ tion or other paper certifies that the mining the appropriate sanction and tinue the action if it becomes clear that signer (1) has conducted a reasonable against whom that sanction should be a filing no longer has a factual or legal inquiry into the facts and law support­ assessed, whetheritbe the attorney, the basis. This split of opinion exists ing the filing, (2) has submitted a filing client, or both. 8 despite the advisory nommittee notes which embodies existing law or a good Attorneys' fees are the most com­ to Rule 11 which caution that "[t ]he faith argument forthe extension, modi­ mon sanction/ although such an award court is expected to avoid using the fication or reversal ofexisting law; and rarely represents the total fees incurred wisdom of hindsight and should test (3) has not interposed the filing for an by the party requesting sanctions. 10 the signer's conduct by inquiring into improper purpose. If the court finds Sanctions may also take the form of what was reasonable to believe at the one or more ofthese requirements vio­ reimbursement for the reasonable ex­ time . . . the paper was submitted. "22 lated, it must impose an appropriate penses incurred to deal with the frivo­ The majority of jurisdictions, in­ sanction under Rule 11. lous filing, II fines,12 the striking of cludingthe Fourth Circuit, have heeded unsigned pleadings,13 injunctions the advisory committee's recommen­ 1. Reasonable Factual Inquiry against bringing new or amended dation and hold that the signer's acts Rule 11 does not specify the type of suits,14 or disciplinary action indepen­ must be judged against the facts and factual inquiry required priorto a filing dent of Rule ILlS law known at the time court papers are other than to require that the inquiry be Sanctions are sought in a variety of signed. 23 Accordingly, if counsel at objectively reasonable. Under this stan­ circumstances, the most frequent of the time offiling believes a claim to be dard, courts must ask whether a rea­ which are in connection with 12(b)(6) colorable, but later becomes aware that sonable attorney in like circumstances motions to dismiss for failure to state a the claim is in fact frivolous, he will would believe his inquiry to be reason­ claim or Rule 56 motions for summary not be subject to Rule 11 sanctions for able. judgment, actions customarily initi­ failing to discontinue the action. 24 Rule 11 plays a significant role in ated by defendants. 16 Sanctions issues These courts find that Rule 11 sanc­ deterring claims which are not grounded arise more frequently in complex liti­ tions cannot be based on thefailure to in fact. Before 1983, the liberal plead­ gation involving alleged civil rights file or amend pleadings or other pa­ ing and motions rules did not deter violations, employment discrimination, pers. This approach is consistent with groundless factual allegations, and, in securities fraud, RICO violations and the plain language of Rule 11 and the fact, encouraged ambiguity and

4 - The Law Foruml22.3 overgeneralized statements ofclaims. 28 12(b)(6) necessarily suggests why sanc­ Rule 11 is violated where the attor­ These liberal pleading rules remain tions are so frequently awarded in con­ ney fails to undertake legal research part of the Federal Rules, although nection with motions to dismiss. which would have revealed the exist­ their continued efficacy in the wake of The Supreme Court in Conley v. ence ofprimary authority directly con­ amended Rule 11 is less than clear.29 Gibson36 established a very difficult trary to the legal position taken in the Insufficient factual inquiry takes standard fordismissal pursuantto Rule paper.42 Likewise, a filing is not well many shapes. Use of boilerplate lan­ 12(b)(6). A defendant must prove "be­ grounded in law where it interposes a guage in a complaint or other pleading yond doubt that the plaintiff can prove legal position which is directly con­ may be grounds for Rule 11 sanc­ no set of facts in support of his claim trary to settled precedent in the rel­ tions. 3D Blind reliance on the client's which would entitle him to relief."37 evant circuit, even if it is supported by or co-counsel's representation of the This standard, if met by the defendant, law in another circuit. 43 The same is facts supporting a complaint without suggests the extent to which the true for causes of action which are independent investigation or reference plaintiff's action is obviously deficient initiated well after the applicable stat­ to the case file may justify Rule 11 and thus may legitimate the defendant's ute of limitations has run,44 or which sanctions where the allegations are later request for sanctions. By the same are plainly barred by the doctrines of proved insufficient to sustain the ac­ token, a plaintiff who successfully de­ res judicata or collateral estoppe1.45 A tion. 31 Insufficient factual inquiry may feats a motion to dismiss should be filing is not well grounded in law if it even be found where the amount of immune from Rule 11 sanctions if the fails to confront or mischaracterizes damages sought in the complaint are filing is later alleged to be frivolous. 38 adverse authority to its argument for wholly disproportionate to the injuries The benchmark for imposing sanc­ the modification or extension of exist­ actually sustained by the plaintiff. 32 tions should not be whether the party ing law.46 Some courts refuse to impose sanc­ loses a motion or verdict, rather it Courts generally refuse to award tions before discovery is complete.33 should be whether the plaintiff had "a sanctions where the paper raises a ques­ The majority of jurisdictions, how­ glimmer of a chance of prevailing."39 tion of first impression.47 Likewise, ever, hold that the pleader cannot rely Courts must adhere strictly to Rule courts will refuse to award sanctions on pretrial discovery to cure a factually 11' s dictate that the filing be judged as where a filing takes a legal position defective pleading in order to avoid ofthe filing date and not as of the date directly contrary to district court au­ Rule 11 sanctions. 34 the motion for sanctions is before the thority in a jurisdiction where only Rule 11 discourages courts from COurt. 4D appellate decisions are considered con­ considering post-filing developments trolling precedent. 48 when judging whether a paper is frivo­ 2. Reasonable Legal Inquiry The advisory committee notes warn lous, and encourages the courts to con­ The reasonable legal inquiry re­ that Rule 11 should not be applied in sider circumstances such as time, quirement of Rule 11 establishes a such a way as to chill an attorney's prefiling preparation, and the attorney's two-fold duty on the part of the attor­ enthusiasm or creativity.49 However, ability to interview the client. Judges, ney. First, the attorney must conduct a it is easy to envision how Rule 11 however, may experience understand­ diligent prefiling inquiry into the law could have such an effect on zealous able difficulty considering the facts as ofthe applicable jurisdiction. Second, advocacy. they existed at the time of filing, espe­ he must not submit a pleading or other Neither Rule 11 nor case precedent cially when the motion for sanctions paper which takes an unreasonable le­ provide much guidance for attorneys may not be decided until many months gal position "in light of existing law or who attempt to challenge existing law. after the allegedly frivolous paper was a good faith extension, modification, In fact, several important questions submitted. Judicial opinion may en­ or reversal of existing law ...." Ac­ remain unanswered. For example, compass, not what the attorney should cording to this standard, the pleader which jurisdiction's law must an attor­ have known to be true ofthe facts at the must assert an objectively reasonable ney and the court consider when deter­ time offiling, but whatthe judge knows argument in support of what the law is mining the plausibility of a particular ofthe facts at the time the request for or should be to avoid Rule 11 sanc­ claim? Is it enough for the plaintiff to sanctions is before him. tions. rely for his legal argument on a case Success on certain pretrial motions The reasonableness ofthe attorney's decided by the California Supreme make the award of Rule 11 sanctions legal inquiry may depend on a number Court, or must he refer solely to the law more likely. A party who prevails on of factors. These factors include the in his own jurisdiction before filing?5D a motion to dismiss pursuant to Fed­ time available for legal research,41 the One would expect that a party seeking eral Rule 12(b)(6) is much more likely existence of conflicting legal opinion, to reverse existing law would be justi­ to request and receive sanctions.35 The the difficulty of the legal issue, or the fied in relying on extrajurisdictional standard for dismissal under Rule complexity ofthe case itself. law for support. The real question in

22.3/fhe Law Forum - 5 light of the case law interpreting Rule Although careful scrutiny is en­ 3. Papers Filed for an Improper 11 is whether a party would ever be couraged and intended by Rule 11, Purpose justified in seeking a reversal of exist­ there is an increased risk that legiti­ Rule 11 defines the term "improper ing law. mate cases will be refused by those purpose" to include actions which are Along the same line, it is unclear attorneys who are risk adverse. Rule intended ''to harass or to cause unnec­ whether the reasonable legal inquiry 11 may deter lawyers from taking cases essary delay or needless increase in the standard is national in scope (similar to and pursuing needed changes in the cost of Iitigation."s8 Any paper filed the standard applied when judging a common law. The attorney is faced for a purpose other than to vindicate physician's standard of care), or with the rule and its uncertainties when the rights ofa party in court is deemed whether a local standard applies. One deciding whether to take a case. He to have been filed for an improper distinguished commentator suggests may scrutinize the plaintiff and his purpose.S9 A party challenging a par­ that attorneys should be held to a stan­ case more closely, and may refuse a ticular motion or pleading need not dard similar to that which is applied to case which, in his legal opinion, is show bad faith on the part ofthe filer, physicians holding themselves out as barely colorable. The lawyer is re­ although proof of bad faith practically experts, where the reasonableness of quired, in essence, to pre-judge the guarantees success on a motion for the inquiry into existing law will de­ factual and legal bases of a client's sanctions. An improper purpose may pend on the attorney's field of exper­ case. also be found where an attorney files a tise, available research facilities, and A lawyer should not be forced to pleading which, if challenged, he has his economic resources. SI make decisions which may preclude no intention of defending. 60 Although Rule 11 requires that the the plaintiff with a colorable claim The overlap between an improper court apply an objective reasonable­ from ever seeking legal redress. It is purpose for filing a paper and one ness standard for determining whether ultimately the client who suffers as a which is unreasonable in light of exist­ a filing, or an argument for a modifica­ result ofan attorney's walk along Rule ing law is apparent where an attorney tion or reasonable extension ofthe law, 11 's legal tightrope. Clearly, the draft­ persists in asserting a claim or defense is improper in light of existing law, ers ofRule 11 did not intend forthe rule untenable by existing law. 61 Similarly, judges have sufficient latitude in de­ to chill zealous advocacy, although the claims brought without factual foun­ ciding whether any reasonable attor­ rule's ambiguities necessarily produce dation or with numerous factual inac­ ney would have expected that the law such a result. S4 curacies which could have been avoided was ripe for change. Rule 11 adds strength to the doc­ through cursory investigation may be There can be little doubt that the trine of stare decisis by imposing on interpreted as being brought for an nature of the court and the philoso­ lawyers an obligation to avoid disturb­ improper purpose.62 phies of the judge may well dictate ing settled precedent. The law must Amended Rule 11 requires that whether a legal claim is frivolous or accommodate everchanging societal courts assess the underlying purpose acceptable. S2 A strict constructionist, needs and expectations. History indi­ of the filing under an objective stan­ for example, may be unwilling to dis­ cates that courts have overturned settled dard of reasonableness.63 Unlike the turb settled precedent and may con­ common law without the slightest fore­ standards of Rule 11 prior to its 1983 clude that any attempt to disturb exist­ warning or academic explanation. ss As amendment, subjective bad faith ofthe ing law is sanctionable. A judge who one commentator has noted, "[t]oday's filer need not be shown, although such is a judicial expansionist, however, frivolity may be tomorrow's law."S6 a showing increases the likelihood that may well find arguments advocating Similarly, what the trial court may find sanctions will be awarded.64 deviation from settled precedent ac­ an implausible legal argument and thus Many courts find the objective stan­ ceptable and possibly desirable. Not sanctionable, an appellate court may dard for evaluating the purpose of the only will such a judge be more likely to find acceptable. S7 filing unworkable, and consider in­ deny a motion to dismiss the action, Rule 11 places a barrier in front of stead the "motive ofthe signer in pur­ but he may be more inclined to deny a the innovative or persistent lawyer who suing the suit.'>6S Other courts embrace request by opposing counsel for sanc­ seeks to challenge settled precedent by the objective standard and consider the tions. affording the judiciary unfettered dis­ circumstances of the case, the court's It is difficult to determine the extent cretion to determine under which legal own experience in the litigation pro­ to which Rule 11 affects advocacy, theory (if any) a reasonable attorney cess, and the law and rules ofthe bar in particularly because the reported cases should seek recompense for his client. determining whether the paper was reflect only those claims which pro­ filed for an improper purpose.66 ceeded to trial and not those claims which were never initiated or were initiated and abandoned.s3

6 - The Law ForumJ22.3 An inquiry into the subjective in­ also may be less inclined to make a insufficiency ofone or more of tent of the filer appears the better ap­ motion for sanctions since the addi­ the alternative statements. A proach for detennining the purpose tionallitigationmaytake on a life of its party may also state as many underlying the filing. Such a subjec­ own, thus reducing the amount of a separate claims or defenses as tive inquiry protects the filer from judi­ prospective judgment by the additional the party has regardless ofcon­ cial second-guessing over the reason costs of litigating the Rule 11 issue. sistency and whether based on for the filing, and discourages courts Likewise, the scarcity ofjudicial opin­ legal, equitable, or maritime from considering matters such as in­ ion on the propriety of Rule 11 sanc­ grounds. All statements shall creased cost and delay as a basis for tions for defendants' conduct may lead be made subject to the obliga­ finding an improper purpose, matters plaintiffs' counsel to consider any re­ tions set forth in Rule 11.73 which are difficult to anticipate when quest for sanctions futile. The standards for filing imposed by the paper is filed. 67 Notwithstanding the plaintiffs in­ Rule 11 appear at odds with the notice creased susceptibility to Rule 11 sanc­ pleading concept authorized by Rule 8 III. DISPARATE IMPOSITION tions, more attention should be given even though the drafters of Rule 8 OF RULE 11 SANCTIONS to the conduct of defendants and de­ attempted to make its standards har­ Numerous cases have discussed the fense counsel. Equal application of monious with Rule 11 'So obligation of plaintiffs to inquire into Rule 11 against defendants will en­ The complexity of modem litiga­ the factual and legal bases underlying courage prompt case settlement, since tion requires that plaintiffs be penn it­ a claim before bringing suit. Only a the defendant will be forced to con­ ted to assert alternate or inconsistent handful of cases, however, have ad­ front weaknesses of their cases much pleadings as pennitted by Rule 8.74 dressed the defendant's obligation to sooner.71 As one commentator sug­ Rule 8 requires that pleadings provide make reasonable inquiry before an­ gests, "[i]f plaintiffs begin to chal­ a general summary of the case which swering a complaint or filing other lenge the factual and legal adequacy of gives fairnoticeto the opposing party. 7S papers. 68 defendants' pleadings under rule 11, Rule 8 does not require that a pleading Statistics compiled since Rule 11 the use of sanctions will profoundly state "facts sufficient to constitute a was amended in 1983 suggest that affect the 'game' oflitigation.'>72 cause of action."76 Rule 11, however, plaintiffs are subjected to Rule 11 sanc,. requires lawyers to articulate their le­ tions more frequently than are defen­ IV. RULE 8 AND RULE 11: gal and factual bases more fully and dants.69 One study, for example, indi­ THE CONFLICT BETWEEN much sooner than required by Rule 8. 77 cates that LIBERAL PLEADING AND The specificity in pleadings required [i]n the 57.8% of the cases in REASONABLE INQUIRY by Rule 11 is inconsistent with the which a Rule 11 violation is Rule 8 ofthe Federal Rules of Civil concept that claims should be made by found, the plaintiff is the vio­ Procedure pennits alternative plead­ short plain statements for relief. 78 lator in 46.9% of the cases, ing and allows the plaintiff to assert Rule 11 's requirement that claims while the defendant is the vio­ legal theories of recovery which are be warranted by existing law is almost latorinonly 1O.9%ofthecases. contradictory to one another. Rule 8 identical to the code pleading rules This great difference, however, penn its such pleading as a matter of eliminated by the Federal Rules of is exp lained by the fact that the equity, so that if there is any conceiv­ Civil Procedure, where the pleader was plaintiff is the target of the able theory of recovery, the plaintiff required to state his claim in tenns of sanctions motion in 536 ofthe has the option of invoking the theory. established "causes ofaction.»19 Rule 680 cases (78.8%) in which The language ofRule 8(e)(2) exempli­ 11 's requirements that a filing have a sanctions were requested. 70 fies the liberal pleading regime of the sufficient factual and legal basis ren­ Defense attorneys do not face the Federal Rules: ders meaningless the liberal pleading same pressures in defending suits as do A party may set forth two or allowances of Rule 8. plaintiffs' attorneys in initiating them, more statements of a claim or and accordingly, their conduct is not as defense alternatively or hypo­ V. THE FUTURE OF AMENDED susceptible to Rule 11 inquiry. Of thetically, either in one count RULE 11 course, some of the pressures which or defense orin separate counts In August 1991, in response to nu­ plaintiffs' counsel experience "come or defenses. When two or merous criticisms of current Rule 11, with the turf." The plaintiff and his more statements are made in the Advisory Committee on the Civil attorney have to contend with the stat­ the alternative and one ofthem Rules published a Proposed Draft of ute of limitations. The plaintiff also if made independently would Rule 11 which seeks to remedy many carries the affinnative burden of pro v­ be sufficient, the pleading is of the Rule's infinnities. Upon Su­ ing the elements of his case. Plaintiff not made insufficient by the preme Court recommendation and con-

22.3/The Law Forum - 7 gressional approval, the Proposed Draft A. Continuing Duty contention, or argument is not with­ shall take effect on December 1, 1993. The triggering event for a Rule 11 drawn or corrected within 21 days (or Many ofthe changes to Rule 11 are violation under the Proposed Draft is other such time as the court may pre­ contained in proposed Rule II(b), the ''presenting or maintaining" of a scribe) after service of the motion. "81 which reads: filing. The advisory committee's notes This 21 day window affords parties (b) Representations to Court. explain that the Proposed Draft im­ time to withdraw their filings to avoid By presenting to the court poses a continuing duty on lawyers and the risk ofRule 11 sanctions. This safe (whether by signing, filing, litigants to reevaluate their factual and harbor appears to reject the Supreme submitting, or later advocat­ legal positions after the paper is sub­ Court's decision in Cooter & Gell v. ing) a pleading, written mo­ mitted, and to discontinue actions Hartmarx Corp., 88 where the Court tion, or other paperfiled with which no longer have merit. Proposed held that the district courts may im­ or submitted to the court, an Rule 11 therefore abandons the "snap­ pose Rule 11 sanctions even when a attorney or unrepresented shot" rule, pursuant to which the paper case is voluntarily dismissed pursuant party is certifying that to the is judged as of the date it is signed and to Rule 41(a)(I)(i).89 best of the person's knowl­ filed. 81 Subsection (c)(l)(B) of the Pro­ edge, information, and belief The continuing duty rule embodied posed Draft establishes another safe formed after an inquiry rea­ in the Proposed Draft encourages courts harbor. It prohibits courts from impos­ sonable under the circum­ to use "hindsight and wisdom" when ing Rule 11 sanctions sua sponte after stances,-- judging a paper's legitimacy, an ap­ a case has been settled or voluntarily (1) it is not being pre­ proach which the advisory committee dismissed, unless it enters an order sented for any improper notes to current Rule 11 expressly cau­ "describing the specific conduct which purpose, such as to harass tioned against. 82 The continuing duty appears to violate subdivision (b) and or to cause unnecessary de­ rule would also allow opposing coun­ directing an attorney, law firm, orparty lay or needless increase in sel to assert Rule 11 violations through­ to show cause why it has not violated the cost oflitigation; out the case, and would require liti­ subdivision (b) with respectthereto.'>90 (2) the claims, defenses, gants to closely track the factual and The safe harbor provisions of the andother legal contentions legal developments of their cases. 83 Proposed Draft are perhaps the most therein are warranted by This will further complicate the litiga­ beneficial change to current Rule 11 existing law or by a tion process and will impede parties because they discourage use ofRule 11 nonfrivolous argument for from developing the merits of their as a tactical device to discourage the the extension, modification, positions. 84 The continuing duty rule filing or maintenance of legitimate or reversal ofexisting law also unfairly favors wealthy litigants claims. They also provide parties with or the establishment ofnew who can afford to pay for their the opportunity to withdraw a frivo­ law; attorney's constant monitoring. Plain­ lous filing in time to avoid Rule 11 (3) the allegations and tiffs and their attorneys may be unable sanctions. other factual contentions to satisfy the stringent burden imposed have evidentiary support by the continuing duty rule, and may C. Signer's Certification or, ifspecifically so identi­ avoid bringing meritorious lawsuits Respecting the Facts fied, are likely to have for this reason. 85 The Proposed Draft seeks to equal­ evidentiary support after a ize the disparate impact of Rule lIon reasonable opportunityfor B. Safe Harbor plaintiffs by changing the certification further investigation ordis­ In response to criticisms that Rule with respect to facts. Rather than re­ covery; and 11 tends to chill zealous advocacy, the quiring that the filer certify that his (4) the denials offac­ advisory committee included several paper is well grounded in fact, the tual contentions are war­ "safe harbor" provisions within sub­ Proposed Draft requires that the paper's ranted on the evidence or, section (c) ofthe Proposed Draft. One "allegations and other factual conten­ ifspecifically so identified, safe harbor requires a party alleging a tions have evidentiary support or, if are reasonably based on a violation ofRule 11 to give the offend­ specifically so identified, are likely to lack of information or be­ ing party notice by separate motion of have evidentiary support after a rea­ lie/80 the "specific conduct alleged to vio­ sonable opportunity for further inves­ The language of subsection (b) and late" the rule. 86 Likewise, a motion for tigation or discovery. '>91 This is a more other subsections ofthe Proposed Draft sanctions cannot not be filed with the forgiving standard for plaintiffs who, evidences several major changes to court ''unless the challenged claim, for legitimate reasons, may not pos­ current Rule 11. defense, request, demand, objection, sess sufficient facts at the time of fil-

8 - The Law ForumJ22.3 ing. ofthe Rule. The Proposed Draft leaves The Proposed Draft attempts to rem­ The Proposed Draft appears to re­ the decision to impose an "appropriate edy many of Rule 11 's infirmities by ject the position of some courts that a sanction" to the discretion of the recognizing the unique position of party cannot use discovery to cure a court.9S This change allows courts plaintiffs in the litigation process which defective pleading.92 Disputes over needed flexibility in evaluating the makes them more susceptible to Rule whether discovery will bear out facts particular situation of the filer before 11 scrutiny. Only time will tell whether sufficient to support the filing will determining whether sanctions are ap­ the proposed amendments to Rule 11 likely generate considerable Rule 11 propriate. will ameliorate the problems plaguing litigation if the Proposed Draft be­ Rule 11 in its present form. comes law. 93 F Relationship Between Rule 11 and Rule 56 Endnotes D. Signer's Certification The advisory committee recognized IThe teon "frivolous" as used in this Ar­ Respecting the Law the frequency with which Rule 11 sanc­ ticle is not limited to its dictionary mean­ The signer's certification with re­ tions are imposed against parties who ing, and is used to describe any action spect to the law remains essentially the are defeated on Rule 56 motions for which, although not wholly illegitimate, same under the Proposed Draft as un­ summary judgment. To remedy this, raises serious questions as to the propriety ofafilingin1ightofthe facts, existing law, der current Rule 11. The signer must the advisory committee notes to the and reason for the filing as of the date the undertake a reasonable prefiling in­ Proposed Draft state: "[t ]hat summary paper is submitted for the court's consid­ quiry into the law to ensure that the judgment is rendered against a party eration. Other courts and commentators position asserted by the paper is "war­ does not necessarily mean, for pur­ find a continuing duty to avoid frivolous ranted by existing law." Proposed poses ofthis certification, that it had no filings beyond the date the paper is signed Rule 11, however, requires that the evidentiary support for its position.'>96 and filed. For a discussion ofthe continu­ signer further certify that the paper is The committee notes go on to state, ing duty rule, see infra notes 22-27 and "warranted by existing law or a however, that "if a party has sufficient accompanying text. nonfrivolous argument for the exten­ evidence with respect to a contention 2See generally Barbara S. Meierhoefer & sion, modification, or reversal ofexist­ that would suffice to defeat a motion Eric V. Armen, Federal Judicial Center, The Caseload Experience of the District ing law or the establishment of new for summary judgment based thereon, Courts From 1972 to 1983: A Preliminary law."94 it would have had sufficient' evidentiary AnalysiS (1985); Thomas B. Marvel, The difference between Proposed support' for purposes of Rule 11.'>97 CaseloadGrowth--Past andFuture Trends, Rule 11 and current Rule 11 is the use There is some inconsistency with this 71 Judicature 151 (1987). ofthe term "nonfrivolous" rather than approach which presumes the legiti­ 3332 F.2d 178, 179 (4th Cir. 1964) (per "good faith." This difference in termi­ macy of a pleading which survives a curiam). nology, which appears purely seman­ motion for summary judgment, but 4Fed. R. Civ. P. 11. tic, does not clarify the attorney's or which cautions against presuming the sReport of the Judicial Conference Com­ party's duty not to initiate or maintain existence of a Rule 11 violation when mittee on Rules ofPractice and Procedure, causes which are without legal merit. the pleading is defeated on summary App. C(Mar. 9, 1982) (comments ofChair­ man Mansfield), reprinted in 97 F.R.D. judgment.98 In fact, by using the term 190, 192 (1983). "nonfrivolous," attorneys may be more 6See infra Part III for further discussion of inclined to refer to the universe of VI. CONCLUSION the disparate application and impact of reported Rule 11 decisions and under­ The 1983 amendments to Rule 11 Rule II. This author relies on the results take more exhaustive research to deter­ have given rise to more questions and of several comprehensive empirical stud­ mine whether a particular legal posi­ inconsistent judicial opinion than the ies on Rule 11 for his conclusion that tion has merit. The "nonfrivolous" drafters likely expected. Although the sanctions are disproportionately imposed standard may require more prefiling rule may have reduced the number of on plaintiffs and their counsel. See gener­ deliberation by the attorney than is frivolous claims initiated or maintained ally Thomas E. Willging, The Rule 11 justified. in the courts, it also may be deterring Sanctioning Process (1988); Georgene M. Vairo, Rule 11: A Critical Analysis, 118 lawyers and clients from bringing ar­ F.R.D. 189 (1988); Saul M. Kassin, An E. Imposition ofSanctions guably legitimate claims and making Empirical Study ofRule 11 Sanctions, in is Discretionary plausible legal arguments for the ex­ Practicing Law Institute, Rule 11 and Other Another significant change reflected tension or reversal of existing prece­ Sanctions: New Issues in Federal Litiga­ in the Proposed Draft is new subsec­ dent. tion 473 (Jerold S. Solovy & Charles M. tion (c), which eliminates the require­ Shaffer, Jr., eds. 1987); MelissaL. Neiken, ment that an appropriate sanction be Sanctions Under AmendedRule 11--Some imposed by the court upon a violation "Chilling" Problems in the Struggle Be-

22.3/fhe Law Forum - 9 tween Compensation and Punishment, 74 generally Schwarzer, supra note 6, at 204. court had improperly applied the standard Geo. L.J. 1313 (1986); William W. l6Nelken, supra note 6, at 1327. These for dismissal). Frequent reversals ofsanc­ Schwarzer ,Sanctions Under theNew Fed­ actions constituted one-third of the cases tions awards are seen at the state level as eral Rule 11 -- A Closer Look, 104 F.R.D. reported in the first two years after amended well. Maryland appellate courts, for ex­ 181 (1985). Rule 11 became effective. "The remain­ ample, frequently reverse sanctions 'Vnder Fed. R. Civ. P. 37 and 28 U.S.C. § ing cases cover a wide variety of proce­ awards. See Newman V. Reilly, 314 Md. 1927, courts are given discretion to deny dural situations, including other rule 12(b) 364, 550 A.2d 959 (1988); Yamaner V. sanctions where they appear unwarranted motions to disqualify counsel, and mo­ Orkin,313 Md. 508,545 A.2d 1345 (1988). under the circwnstances of the case. tions to remand to state court." Id. See generally AlbertO. Brault,Maryland's 8Thomas v. Capital S"". Servs., Inc., 836 17See Vairo, supra note 6, at 200-02. Controversial Law ofSanctions, 26 Md. F.2d 866, 878 (5th Cir. 1988). 18Thomas V. Capital Sec. Servs., Inc., 836 Bar. 1. 19, 24-26 (Jan. 1993); Susan Souder ~elken, supra note 6, at 1333 (monetary F.2d at 879-81; see also Cooter & Gell V. & Karen M. Crabtree, Sanctions in Mary­ awards were made in 96% of the cases in Hartmarx Corp., 496 U.S. 384,398 (1990) land, 23 Md. Bar. J. 29, 31 (July/Aug. which Rule 11 sanctions were imposed). ("although Rule 11 does not establish a 1990). lOIn re Kunstler, 914 F.2d 505,522 (4th deadline for the imposition of sanctions, 22Fed. R. Civ. P. 11 advisory committee Cir. 1990), cert. denied, III S. Ct. 1607 the Advisory Committee did not contem­ notes (emphasis added). (1991); Thomas, 836 F.2d at 878 ("the plate there would be a lengthy delay prior 23E.g., Oliveriv. Thompson, 803 F.2d 1265, sanction imposed should be the least se­ to their imposition"). But see Hicks V. 1274 (2dCir. 1986) ("rule 11 applies only vere sanction adequate to the purpose of Southern Md. Health Sys. Agency, 805 to the initial signing of a 'pleading, mo­ Rule II."). The Supreme Court has ruled F.2d 1165, 1167 (4th Cir. 1986) ("In the tion, or other paper.' Limiting the appli­ that Rule II's purpose is primarily deter­ absence of an applicable local rule in the cation of rule 11 to testing the attorney's rent. Business Guides, Inc. V. Chromatic district court, the only time limitation [on conduct at the time a paper is signed is Communications Enters., Inc., IllS. Ct. sanction requests] arises out ofthose equi­ virtually mandated by the plain language 922, 934 (1991); Cooter & Gell V. table considerations that a district judge ofthe rule."), cert. denied sub nom. County Hartmarx C01p.,496U.S. 384,393 (1990); may weigh in his discretion."). ofSuffolkv. Graseck, 480 U.S. 918 (1987); Pavelic & LeFlore V. Marvel Entertain­ The Rules of the United States District Brubaker V. City of Richmond, 943 F.2d ment Group, 493 U.S. 120 (1989); accord Court for the District of Maryland man­ 1363, 1381 (4th Cir. 1991). Miltierv. Downes, 935 F.2d 660, 665 (4th date that claims for attorneys' fees not 24See, e.g., Thomas V. Capital Sec. Servs., Cir. 1991). filed within twenty days of entry of judg­ Inc., 836 F.2d 866 (5th Cir. 1988); accord liSee, e.g., Davis V. Veslan Enters., 765 ment are waived. See United States Dis­ Oliveri, 803 F.2d at 1274-75. This ap­ F.2d 494,500-01 (5th Cir. 1985) (award­ trict Court for the District of Maryland proach is frequently referred to as the ing judgment interest lost due to delay Local Rule 109(a). The court in Hicks, "snapshot" approach. Id. Counsel may caused by frivolous filing). however, held that Local Rule 23 (the nonetheless be sanctioned pursuant to 28 12See, e.g., Hudson V. Moore Business predecessor to Local Rule 109(a)) "con­ U.S.C. § 1927 ifhe refuses to withdraw a Forms, Inc., 898 F.2d 684,686 (9th Cir. templates that there may be departures paper after the presentation of 1990) (affinninga$2,000 "deterrentsanc­ from it by court order, and here the court uncontroverted proof which undermines tion" in addition to the award ofattorneys' has ordered payment of legal fees despite the filing. Thomas, 836 F.2d at 875 n.12. fees). See generally Jerold S. Solovy, et the existence ofthe rule." Hicks, 805 F.2d 250liveri V. Thompson, 803 F.2d at 1274. al., Sanctions Under Federal Rule ofCivil at 1167. 26E.g., Robinson V. National Cash Regis­ Procedure 11, in Practicing Law Institute, 19Fed. R. Civ. P. 11 advisory committee ter Co., 808 F.2d 1119, 1127 (5th Cir. Current Problems in Federal Civil Prac­ notes (addressing 1983 amendments). 1987) ("a docwnent that initially satisfies tice 29 (Barry H. Garfinkel ed., 1992). 2°Coghlan V. Starkey, 852 F.2d 806, 817 the requirements ofrule 11 may later turn 13Joiner V. Delo, 905 F.2d 206,208 (8th n.21 (5th Cir. 1988)("the standards ofrule out to be the basis for rule 11 sanctions as Cir. 1990). The 1983 amendmenttoRule 11, irrespective of the rule itself, govern new facts are discovered which show that 11 eliminated the express authority of appeals to our court"); United States V. there is no longer a good faith basis for the courts to strike pleadings. Many courts Carley, 783 F.2d 341, 344-45 (2d Cir.), docwnent. H). . therefore hold that they lack such author­ cert. denied, 476 U.S. 1142 (1986). But 27See Thomas, 836 F.2d at 875; see also ity. E.g., Thomas V. Capital Sec. Servs., see Cooter & Gell V. Hartmarx Corp., 496 Gaiardo V. Ethyl Corp., 835 F.2d479, 484 Inc., 836 F.2d 866, 878 (5th Cir. 1988). U.S. 384,402-04 (1990) (district courts (3d Cir. 1987). 14See Stelly V. Commissioner ofIRS, 808 are best suited to determine when Rule 11 28See Fed. R. Civ. P. 8(e)(2) (a party may F.2d442,443 (5thCir. 1987) (per curiam); has been violated); see also Partington V. state as many claims or defenses the party Moellerv. United States, 127 F.R.D. 160, Gedan, 923 F.2d 686, 688 (9th Cir. 1991). has regardless ofconsistency); see also 2A 164 (W.O. Ark.), cert. denied, 493 U.S. 2lSee, e.g., Stevens V. Lawyer's Mut. Liab. James Wm. Moore, et al., Moore's Fed­ 815 (1989). Ins. Co., 789 F.2d 1056, 1060 (4th Cir. eral Practice para. 8.13, at 8-57 (2d ed. ISSee Steinle V. Warren, 765 F.2d 95, 102 1986) (reversing sanctions award against 1991). For further discussion of the con­ (7th Cir. 1985) (recommending attention attorney for bringing allegedly frivolous flict between Federal Rules 8 and II, see by appropriate disciplinary authority); In declaratory judgment action); Goldman V. infra Part IV. re Boucher, 837 F.2d 869 (9th Cir.) (sus­ Belden, 754 F.2d 1059, 1071 (2d Cir. 29See infra Part IV for further discussion of pended attorney for six months), modi­ 1985) (vacating imposition of sanctions the conflict between Federal Rules 8 and fied, 850 F.2d 597 (9th Cir. 1988). See and decision on the merits because the 11.

10 - The Law Foruml22.3 300liveri v. Thompson, 803 F.2d 1265, 39Hoover Universal. Inc. v. Brockway S60. Michael Risinger, Honesty in Plead­ 1280 (2d Cir. 1986), cert. denied sub nom. IMCO. Inc., 809F.2d 1039, 1044 (4thCir. ing and its Enforcement: Some "Striking" CountyofSuJJolkv. Graseck,480U.S.918 1987). Problems with Federal Rule ofCivil Pro­ (1987). 4OThompsonv. Duke,940F.2d 192,197-98 cedure lI. 61 Minn. L. Rev. 1,56(1976). 31See Southern Leasing Partners v. (7th Cir. 1991); Miltier v. Downes, 935 S7See• e.g.• Goldman v. Belden, 754 F.2d McMullan, 801 F.2d 783, 788 (5th Cir. F.2d 660, 664 (4th Cir. 1991). 1059 (2dCir. 1985); see also supra note 21 1986) (per curiam) ("blind reliance on the 41But see Zaldivar v. City ofLos Angeles, and accompanying text (rule 11 sanctions client is seldom a sufficient inquiry"); 780 F.2d 823, 831 (9th Cir. 1986) awards are frequently reversed on appeal). Unioil. Inc. v. E.F. Hutton & Co., 809 F.2d ("[e]xtended research alone will not save sSUse of the phrase "cause unnecessary 548,558 (9th Cir. 1986) (attorney cannot a claim that is without legal or factual delay" implicitly incorporates bad faith. delegate to co-counsel his obligation to merit from the penalty of sanctions. "). S9See In re Kunstler, 914 F.2d 505, 518 undertake a reasonable factual inquiry), 42Crookham v. Crookham, 914 F.2d 1027, (4th Cir. 1990) ("the purpose to vindicate cert. deniedsub nom. Barton v. E.F. Hutton 1029 (8th Cir. 1990). rights in court must be central and sin­ & Co., 484 U.S. 822 (1987). But see 43DeSisto College. Inc. v. Line, 888 F.2d cere."),cert. denied, 111 S.Ct.1607(1991). Unioil. Inc. v. E.F. Hutton & Co., 809 F.2d 755, 765-66 (l1thCir. 1989),cert. denied, 6OCohen v. Virginia Elec. & Power Co., 548, 558 (9th Cir. 1986) (dictum) ("we 495 U.S. 952 (1990). 788 F.2d 247, 249 (4th Cir. 1986). agree that re liance on forwarding co-coun­ 44Crookham, 914 F.2d at 1030 (sanctions 61 See Andre v. Merrill Lynch Ready Assets sel may in certain circumstances satisfy an awarded for bringing oftime-barred cause Trust,97 F.RD. 699, 702 (S.D.N.Y. 1983). attorney's duty of reasonable injury. "). ofaction). Contra O'Connellv. Champion 62In reKunstler,914 F.2d at518 ("whether 32Rhinehart v. StauJJer, 638 F.2d 1169, Int'l Corp., 812F.2d393, 394-95 (8thCir. or not a pleading has a foundation in fact 1171 (9th Cir. 1979). 1987). or is well grounded in law will often 330liveri, 803 F.2d at 1279-80; see also 4SInternationaIAss'nofMachinists&Aero­ influence the determination ofthe signer's Beverly Gravel. Inc. v. DiDomenico, 908 space Workers v. Boeing Co., 833 F.2d purpose, and we suggest a district court F.2d 223, 226 (7th Cir. 1990) (allowing a 165, 172 (9thCir. 1987),cert. denied,485 should consider the first two prongs of tenuous claim to proceed so as to afford U.S. 1014 (1988). Rule 11 before making a determination of the party a reasonable opportunity for 46Fox v. Acadia State Bank, 937 F.2d improper purpose."). discovery. But see Collins v. Walden, 834 1566,1569-70 (1IthCir. 1991); Thornton 63Stevens v. Lawyers Mut. Liab. Ins. Co., F.2d 961,965 (11th Cir. 1987): v. Wahl, 787 F.2d 1151, 1154 (7th Cir. 789 F.2d 1056, 1061 (4th Cir. 1986); see Although a litigant proceeding in 1986), cert. denied, 479 U.S. 851 (1986). also Zaldivar v. City ofLos Angeles, 780 good faith has a right to use civil 47E.g .• Nelson v. Piedmont Aviation. Inc., F.2d 823, 832 (9th Cir. 1986) ("harass­ discovery in attempts to prove 750 F.2d 1234,1238 (4th Cir. 1984), cert. ment under Rule 11 focuses upon the the existence of a colorable claim denied, 471 U.S. 1116 (1985). improper purpose of the signer, objec­ for relief, filing a lawsuit is not a 48TMF Tool Co. v. Muller, 913 F.2d 1185, tively tested, rather than the consequences gratuitous license to conduct in­ 1191 (7th Cir. 1990). of the signer's act, subjectively viewed by finite forays in search of evi­ 49Fed. R. Civ. P. 11 advisory committee the signer's opponent."). dence. When it becomes appar­ notes (addressing 1983 amendments); see 64In re Yagman, 796 F.2d 1165,1186 (9th ent that discoverable evidence also Cabell v. Petty, 810 F.2d 463, 466 Cir. 1986). will not bear out the Claim, the (4th Cir. 1987). 6sIn re Kunstler, 914 F.2d at 519. litigant and his attorney have a sOSee supra note 43 and accompanying 66E.g., Schwarzer, supra note 6, at 195 duty to discontinue their quest. text. (footnote omitted): YoSee Edward D. Cavanaugh, Developing slSchwarzer, supra note 6, at 194. The record in the case and all of Standards Under Amended Rule 11 ofthe s2Note, Plausible Pleadings: Developing the surrounding circumstances Federal Rules ofProcedure, 14 HofstraL. Standardsfor Rule 11 Sanctions, 100 Harv. should afford an adequate basis Rev. 499, 519 (1986) (Rule 11 no longer L. Rev. 630,640 (1987). for determining whether particu­ permits "'file now, discover later' tac­ s3Carl Tobias, Reconsidering Rule 11, 46 lar papers or proceedings caused tics."); see also In re Kunstler, 914 F.2d U. Miami L. Rev. 855, 865 n.51 (1992). delay that was unnecessary, 505,516 (4th Cir. 1990) ("the need for Y-See Fed. R. Civ. P. 11 advisory commit­ whether they caused increase in discovery to complete the factual basis for tee notes (addressing the 1983 amend­ cost of litigation that was need­ alleged claims is not an excuse to allege ments). less, or whether they lacked any claims with no factual basis"), cert. de­ ssnlls Article cannot adequately discuss apparent legitimate purpose .... nied, III S. Ct. 1607 (1991). the various rationales for why courts make The court can make such find­ 3SSee supra note 16 and accompanying dramatic reversals ofsettled common law. ings guided by its experience in text. Many courts and scholars have devoted litigation, its knowledge of the 36355 U.S. 41 (1957). considerable effort to the explanation of standards of the bar of the court, 37Id. at 45-46. this phenomenon, and their works should its familiarity with the case be­ 38But see Lemaster v. United States, 891 be referred to for further insight. See fore it, and by reference to the F.2d 115,121 (6thCir. 1989) (per curiam) generally Ruggero J. Aldisert, Precedent: relevant criteria under the Fed­ (complaint that survives amotion for sum­ What It Is and What It Isn't; When Do We eral Rules such as those in Rule mary judgment or dismissal is not immune Kiss It and When Do We Kill It?, 17Pepp. 11 or 26(b)(1). from Rule 11). L. Rev. 605 (1990). ______22.3/fhe Law Forum - 11 67But see Schwarzer, supra note 6, at 196 pleading is not only proper, but neces- 9lFed. R. Civ. P. 11 (b)(3) (Proposed Offi­

("were a court to entertain inquiries into sary. II Jack H. Friedenthal, Mary K. Kane cial Draft 1992) (emphasis added). subjective bad faith, it would invite a & Arthur R. Miller, Civil Procedure § nSee supra note 34 and accompanying number of potentially harmful conse­ 5.12, at 265 (1985). text. quences, such as generating satellite liti­ 7sMoore,etal.,supranote 28,para. 8-13 at 93Yairo, supra note 6, at 198. gation, inhibiting speech and chilling ad­ 8-62. 94Fed. R. Civ. P. 11 (b)(2) (Proposed Offi- vocacy."). 76Wade v. Johnson Controls. Inc., 693 . cial Draft 1992) (emphasis added). 68Cases granting plaintiffs' requests for F.2d 19,21 (2d Cir. 1982). 9SFed. R. Civ. P. II(c)(l)(A) (Proposed sanctions against defendants for interpos­ "Note, supra note 52, at 641. Official Draft 1992). ing frivolous defenses are even more scant. 78Fed. R. Civ. P. 8(a)(2). 96Id. See Smith v. United Transp. Union Local 79See Note. supra note 52, at 637. 97Id. No. 81,594 F. Supp. 96, 100-01 (S.D. Cal. 8OFed. R. Civ. P. 11(b) (Proposed Official 98See supra note 38. 1984). But see Carl Hizel & Sons. Inc. v. Draft 1992). Browning-Ferris. Inc., 600 F. Supp. 161, 81See supra notes 22-27 and accompany­ About the Author: Alan J. Belsky, 163-64 (D. Colo. 1985). ing text. Esquire, is an associate with the Bal­ 69See supra note 6 and authorities cited 82See supra note 22 and accompanying timore law firm of Gordon, Feinblatt, therein. text. Rothman, Hofiberger & Hollander. He 70Yairo, supra note 6, at 200 (emphasis 83Tobias, supra note 53, at 868. J.D. added). 84Id. at 869. received his from the University 7lNelken, supra note 6, at 1328. &SId. at 869-71. of Baltimore School of Law in 1991. 72Id. at 1325. 86Fed. R. Civ. P. 1 I (c) (Proposed Official A previous draft of this Article was 73Fed. R. Civ. P. 8(e); accord Md. Rule 2- Draft 1992). awarded the Hofiberger Prize for the 303(c) (1993). 8'Fed. R. Civ. P. II(c)(I)(A) (Proposed best paper on lawyers' ethics and pro­ 74 11Given the fact that litigation is becom­ Official Draft 1992). fessional responsibility during the ing increasingly complex, and that some 88496 U.S. 384 (1990). 1990-91 academic year. Mr. Belsky types ofinformation are much more diffi­ 89Id. at 394-98. extends his thanks to Professor Rich­ cult to obtain in advance ofsuit, the elimi­ 9OFed. R. Civ. P. 11(c)(I)(B) (Proposed ard W. Bourne for his insightful com­ nation ofany bar to good-faith alternative Official Draft 1992). ments on earlier drafts ofthis Article.

THE UNIVERSITY OF BALTIMORE LAW FORUM IS SEEKING PROFESSIONAL ARTICLES OF INTEREST TO THE MARYLAND LEGAL COMMUNITY.

Punitive Damages Criminal Law/Procedure Professional Ethics Social SecuritylRetirement Benefits

LEGAL RESEARCH ASSISTANCE is available to prospective authors upon request.

FOR MORE INFORMATION CONTACT: The University of Baltimore Law Forum Room 200 Law Center 1420 North Charles Street Baltimore, Maryland 21202 (410) 837-4493

12 - The Law ForumJ22.3