4.2 Sanctions

Updated 2013 by Jeffrey S. Gutman

Federal courts generally have three sources of power from which to impose sanctions:

    1.  Rule 11 of the Federal Rules of Civil Procedure;

    2.  28 U.S.C. § 1927; and

    3.  The inherent power of the court.

These sources of power overlap and are not necessarily mutually exclusive./1/ The legal aid attorney should consider all three carefully when asking for sanctions or when faced with the threat of sanctions. This chapter explores each of these grounds for imposing sanctions as well as the ethical issues inherent in ghostwriting filings for pro se litigants.

4.2.A. Federal Rule of Civil Procedure 11

Federal Rule of Civil Procedure 11 authorizes federal courts to issue sanctions against parties or their attorneys who file pleadings, motions, or other papers that are filed for an improper purpose or lack a required level of evidentiary or legal support. Rule 11 sanctions are not available for other sorts of misconduct, like discovery abuse or actions during a trial./2/ The aim of Rule 11 is to deter frivolous filings, to "curb abuses of the judicial system,”/3/ and to require litigants to refrain from conduct that frustrates Rule 1’s goal of the “just, speedy, and inexpensive determination of every action.”/4/

Rule 11 states that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented."/5/ That is, counsel must sign every document filed with the court./6/a A typed name is not a signature./7/ But, courts may by local rule establish electronic filing policies consistent with technical standards adopted by the Judicial Conference of the United States that permit electronic signature./8/ The signer’s address, e-mail address, and telephone number must be included./9/ Additionally, local rules of court may require further identifying information to accompany the signature, such as fax numbers./10/ In Business Guides Inc. v. Chromatic Communications Enterprises, the Supreme Court noted that “[t]he essence of Rule 11 is that signing is no longer a meaningless act; it denotes merit. A signature sends a message to the district court that this document is to be taken seriously."/11/

4.2.A.1   Standards for Making Representations to the Court

Rule 11(b) provides that,”[b]y presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that the material presented is not filed for an improper purpose and has the requisite degree of evidentiary and legal support./12/ This language raises two interpretive questions: what "later advocating" means and what "a reasonable inquiry under the circumstances" entails.

The “later advocating” requirement was added to Rule 11(b) in 1993 to emphasize that Rule 11 obligations continue throughout the litigation process./13/ This amendment “subjects litigants to potential sanctions for insisting upon a position after it is no longer tenable.”/14/ Although an attorney must discontinue advocating a position that the attorney later learns is invalid, Rule 11 does not require a formal amendment or withdrawal of the initial filing./15/ Nor does Rule 11 cover contentions made before the court at oral argument regarding matters not previously raised because attorneys may have lacked time to research their validity./16/ However, oral statements that repeat baseless assertions earlier made in writing are sanctionable./17/

The "reasonable inquiry" requirement imposes on the attorney a duty to stop and investigate the legal and factual basis for a claim or defense before making it in writing./18/  How much and what type of inquiry is required depends on the circumstances. As one might expect, important circumstances include the amount of time the attorney has to make the investigation, the complexity of the matter, the party's familiarity with the matter, and the degree of access to relevant information./19/ A pending expiration of a statute of limitations or situation in which the client is facing irreparable or grave harm may justify a less robust investigation. If there is sufficient time to conduct a full investigation, an attorney is expected to interview relevant witnesses, review pertinent documents, and discuss the case with prior counsel if the case has been referred./20/ Generally, an attorney may rely upon the reasonable representations of their client, but good practice is to seek verification of those facts when it is possible to do so./21/ Lack of experience is not a relevant factor, as inexperienced attorneys are expected to seek guidance from seasoned attorneys. At bottom, absolute certainty of the facts following a reasonable investigation is not required./22/

Rule 11(b) enumerates four standards to which litigants and counsel must adhere when presenting materials to the court. First, Rule 11(b)(1) requires that the papers not be presented for an improper purpose. Prohibited improper purposes include harassment, unnecessary delay, and the needless increase in the cost of litigation./23/ Despite the subjective connotation of “improper purpose,” most courts agree that the test is an objective one based upon a totality of the circumstances at the time the paper is filed./24/ Courts adhering to the objective test will look to "objective indicators of purpose from which to infer improper purpose” and will not consider or attempt to divine an individual litigant's subjective purpose./25/ Frivolousness alone is not a basis for inferring improper purpose. Courts using this test must identify specific “unusual circumstances” that show an improper purpose, such as excessive filing of motions that are substantially similar to earlier, unsuccessful motions./26/ While most circuits addressing the issue agree that finding an improper purpose is a purely objective task, a few courts disagree, leaving unresolved the question of whether, and to what extent, subjective intent should be considered as a factor in determining the litigant's purpose./27/

Complicating the improper purpose standard has been how to evaluate cases involving a mix of proper and improper purposes and cases involving the filing of non-frivolous documents which may nevertheless be filed for an improper purpose. The language of Rule 11 plainly states that papers presented for "any" improper purpose will be sanctionable./28/ However, the courts have split on mixed motive cases./29/ Whether non-frivolous filings made for improper purposes are sanctionable has also split the circuits. The Second, Ninth, and Tenth Circuits have held that sanctions may not be imposed in connection with the filing of a non-frivolous complaint, even if filed for an improper purpose./30/ These courts have found that that “[a] party should not be penalized for or deterred from seeking and obtaining warranted judicial relief merely because one of his multiple purposes in seeking that relief may have been improper.”/31/ Alternatively, the Fourth, Fifth and Seventh Circuits have held that counsel filing a non-frivolous complaint for improper purposes may be sanctioned./32/ The Fourth Circuit has adopted a balancing test of sorts, stating that “the purpose to vindicate rights in court must be central and sincere.”/33/ The Fifth Circuit has adopted a “but for” test to determine when a party may be sanctioned for filing a document with an improper purpose./34/ This test requires the movant to prove, through objectively ascertainable evidence, that “but for” the improper motive, the filing would not have been filed./35/ In contrast, courts have held that sanctions may be awarded against attorneys filing non-frivolous motions for an improper purposes./36/

Second, Rule 11(b)(2) states that any claims, defenses, or legal contentions presented to the court must be grounded in existing law, asserted to extend, modify, or reverse existing law, or establish new law./37/ This requires attorneys to make an objectively reasonable inquiry under the circumstances into the state of the law. The standard is not met when the legal assertion is (1) objectively baseless and (2) the attorney has not made a “reasonable and competent inquiry” before making it./38/ The notion is that sanctions are warranted when a reasonable inquiry would reveal frivolousness to a comptent attorney./39/ A court need not find bad faith to issue sanctions; good faith is no defense./40/ Thus, an "empty head, pure heart" defense to a motion for sanctions must fail.  A legal position will be sanctionable only when it can be said that a “reasonable attorney in like circumstances could not have believed his actions to be legally justified.”/41/

When the prevailing law is unsettled, a well-supported but unsuccessful argument should not be subject to sanctions.  When the existing law is clear, but contrary to the position of the legal aid attorney, courts have held that plausible arguments to extend, modify, or reverse existing law are not subject to Rule 11 sanctions./42/ Such arguments, though, should be grounded in favorable precedent in other circuits or academic literature.  Reliance on policy or logic alone raises the risk of sanctions. The legal argument must have "absolutely no chance of success under the existing precedent" to contravene Rule 11./43/ Nonetheless, advancing an argument for the purpose of preserving it for appellate review is permissible, so long as the argument is not frivolous./44/ Legal services attorneys should document the legal research performed and consultations with other attorneys before filing because these efforts are subject to scrutiny should a Rule 11 motion be filed./45/ When an argument is foreclosed by existing law, the legal aid attorney should be careful to explain that the attorney is advancing a novel legal argument aimed at reversing existing law or establishing new law./46/

Third, Rule 11(b)(3) requires that any factual allegation either have evidentiary support or, if identified as such, be “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”/47/ Evidentiary support can include reasonable inferences from facts or circumstantial evidence./48/ This requires attorneys to make an objectively reasonable inquiry under the circumstances into the facts of the case. As noted above, to determine whether factual assertions are supported by an objectively reasonable factual inquiry, courts will look to several factors, including:

whether the signer of the documents had sufficient time for investigation; the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion or other paper; whether the case was accepted from another attorney; the complexity of the facts and the attorney’s ability to do a sufficient pre-filing investigation; and whether discovery would have been beneficial to the development of the underlying facts./49/

The Second Circuit recently held that “[a] statement of fact can give rise to the imposition of sanctions only when the particular allegation is utterly lacking in support."/50/ It is not a violation of Rule 11 to fail to indentify the support for the fact as either based on direct evidence or inference./51/ Nor is it generally a violation not to disclose contrary factual evidence./52/ Generally, isolated factual errors are not sanctionable, so long as the error was made in good faith and in a context in which the filing as a whole had factual support./53 However, courts have on occasion held such errors to be deserving of sanctions./54/ Factual assertions should, at bottom, be made with extreme care and after review by others in the legal aid office.

Fourth, Rule 11(b)(4) states that any denials of factual contentions must be either “warranted on the evidence” or, if identified as such, “reasonably based on a lack of information or belief.”/55/ Thus, denials of fact are treated like factual assertions and must be objectively reasonable. The addition of this fourth requirement to the 1993 amended rule ensures an equal application to both plaintiffs and defendants. 

4.2.A.2.  Sanctions

Rule 11(c) permits, but no longer requires, the court to issue sanctions to attorneys, law firms, or parties in violation of the rule or responsible for the violation./56/ The 1993 amendments made the issuance of sanctions, whether prompted by motion or by the court’s own initiative, discretionary rather than mandatory./57/ The advisory committee’s notes list several factors that the courts should consider in deciding whether to issue a sanction and, if appropriate, the kind of sanction to impose:

Whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants./58/

The 1993 amendments also stress that the purpose of sanctions is deterrence rather than compensation and highlight the availability of non-monetary sanctions for the court's consideration./59/  Consistent with this deterrence function, “if a monetary sanction is imposed, it should ordinarily be paid into court as a penalty.”/60/ These amendments lessen the incentive for a litigant to file a motion for sanctions because the litigant is less likely to profit financially if a Rule 11 violation is found by the court. Rule 11, however, also authorizes the direct payment of fees and expenses to the moving party when “warranted for effective deterrence.”/61/ At bottom, “sanctions should not be more severe than reasonably necessary to deter repetition of the conduct by the offending person or comparable conduct by similarly situated persons.”/62/ This deterrence function permits the court to account for the attorney's resources when setting a monetary sanction./63/

Rule 11 authorizes the court to sanction both attorneys and their clients./64/ Rule 11(c)(1)(A) further provides that, “[a]bsent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.”/65/ Although this provision has apparently not been applied to a legal services organization, it does suggest that such an entity could be regarded as a law firm and, therefore, subject to sanctions when an attorney it employs violates Rule 11./66/ The advisory committee’s notes state that the court may appropriately inquire whether “institutional parties” impose restrictions on the discretion of individual attorneys./67/ To the extent that such restrictions minimize the risk of institutional sanctions, legal aid organizations may wish to consider imposing them.

Rule 11(c)((1)(A) requires that a party seeking sanctions must serve a separate motion/68/ identifiying the conduct that is alleged to have violated Rule 11 on the alleged offender twenty-one days before filing the motion in court. /69/ During this twenty-one-day period,/70/ the party served may withdraw or correct any challenged material, thus eliminating the need for the motion to be filed with the court./71/ This “safe harbor” period aims to decrease the volume of Rule 11 motions that come before the court. Litigants may avoid potential sanctions by withdrawing or amending improper materials without the court's involvement. The court in Barber v. Miller discussed the rationale for the safe-harbor provision as follows:

 These provisions are intended to provide a type of “safe harbor” against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party’s motion unless, after receiving the motion, it refused to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. Under the former rule, parties were sometimes reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely withdrawal of a contention will protect a party against a motion for sanctions. /72/

A court may also levy sanctions sua sponte but may do so only after issuing a specific order describing the perceived misconduct and allowing the possible offender an opportunity to show cause why the sanction should not be issued./73/ The rule incorporates a measure of due process protection./74/ However, because a sua sponte order to show cause does not allow an attorney the opportunity to withdraw the offending filing, courts are cautioned to “reserve such sanctions for situations that are akin to a contempt of court.”/75/ Furthermore, to facilitate appellate review, the rule requires the court to describe the sanctionable conduct and the basis for the sanction imposed./76/

While the matter may turn on particular facts, Rule 11 sanctions are not generally immediately appealable under the collateral order doctrine./77/ On appeal,”[a]ll aspects of a district court’s Rule 11 determination are examined under the abuse of discretion standard.”/78/ However, when sanctions are levied sua sponte, they will be reviewed with “particular stringency” due to the “unusual position of the trial court in such circumstances, serving at once as both prosecutor and judge . . . .”/79/

4.2.B. 28 U.S.C. § 1927

Another basis for sanctions lies in 28 U.S.C. § 1927, which serves “to deter unnecessary delays in litigation.”/80/ The statute authorizes sanctions in the form of “excess costs, expenses, and attorneys fees” against any attorney who “multiplies the proceedings in any case unreasonably and vexatiously.”/81/ Courts are divided on whether law firms (and, by extension, legal aid offices) may be subject to sanctions under § 1927 in addition to individual attorneys./82/  Courts have resorted to § 1927 more frequently since the statute was amended to include attorney fees./83/

The scope of authority to sanction under § 1927 is both broader and narrower than Rule 11./84/ Section 1927 is broader in that the attorney’s behavior is examined throughout the entire litigation, as a “course of conduct,”/85/ while Rule 11 applies to individual filings.  The filing of a frivolous complaint, alone, may violate Rule 11, but not § 1927 because such a complaint does not "multiply" the proceedings./86/ Conversely, a course of conduct can be sanctionable under § 1927 even though the individual filings during that conduct comport with Rule 11 standards.

Section 1927 is narrower because, unlike Rule 11 requirement of objective reasonableness, § 1927 generally requires subjective bad faith./87/ Some courts, however, interpret § 1927 as authorizing sanctions when attorney conduct falls short of bad faith: “viewed objectively, manifests either intentional or reckless disregard of the attorney’s duties to the court.”/88/  For these courts, malicious intent or bad purpose is not required. Thus, the "circuits are split as to whether § 1927 requires a showing of subjective bad faith or whether mere recklessness is sufficient."/89/

Since Rule 11 and § 1927 have different standards, courts deciding whether to issue sanctions under both may conduct a separate inquiry into § 1927 and Rule 11, but a court proceeding sua sponte under either rule must give the subject attorney notice and an opportunity to respond./90/ The resulting findings must detail the basis for the sanctions, link the conduct to the sanctions awarded, and distinguish among sanctions awarded under different theories./91/ Sanctions under § 1927 serve both deterrence and compensatory functions. As a result, the amount awarded need not be the least amount necessary to deter subsequent misconduct and is approrpiately payable to the opposing party./92/ The circuits are divided on whether it is not an abuse of discretion for a trial court to reduce a fee award to account for the sanctioned attorney's ability to pay it./93/

4.2.C.  The Inherent Power of the Court

The sanctioning power of the federal courts "is not limited to what is enumerated in statutes or in the rules of civil procedure."/94/ Federal courts have the inherent power to punish persons who abuse the judicial process.  The inherent power of the court is an "implied power squeezed from the need to make the courts function."/95/ Rule 11 and § 1927 do not displace the court's inherent power, but instead they exist concurrently./96/

The inherent power to sanction is broad./97/ The scope of the power reaches "any abuse" of the judicial process./98/ This includes the authority to sanction for conduct that occurs outside of the courtroom and is not limited to attorneys or parties./99/ Courts also have broad discretion to determine the appropriate sanction to be imposed./100/ Where appropriate, courts may impose attorney fees representing the entire cost of litigation./101/ However, the courts' inherent power to impose attorney fees "is limited to those cases where the litigant has engaged in bad-faith conduct or willful disobedience . . . ."/102/

Given the broad authority granted, a court's use of the inherent power should be used cautiously./103/ Any use must comply with due process./104/ Use of the power will be reviewed under the abuse of discretion standard./105/

Table of Comparison:

 

 Rule 11

 28 U.S.C. §1927

 Inherent Power

Applicable Conduct:

Pleadings, written motions, and other papers filed in a civil action for an improper purpose or without a reasonable inquiry into the facts and law.

Any conduct which so multiplies the proceedings in any case unreasonably and vexatiously.

Any abuse of the judicial process.

Legal Standard Triggering Liability:

Objective reasonableness

Circuit Split:
Subjective bad faith or mere recklessness.

Bad faith required to award expenses including attorney fees.

Who Can Be Sanctioned:

Attorneys, their law firms, parties, and pro se litigants.

Attorneys only.

Broad authority.

Procedural Requirements:

Must be in separate motion, which must be served on the offending party 21 days before filing with the court.  If offending filing is withdrawn, the matter is concluded.  Court may demand attorney, law firm, or party show cause why conduct does not violate Rule 11(b) of its own initiative.

No specific requirements.  Must comport with due process.
No specific requirements.  Must comport with due process.

4.2.D. Ghostwriting

As increasing numbers of litigants proceed pro se, many lawyers and legal offices offer "unbundled legal services" also known as limited scope representation./106/ Limited representation is permissible if reasonable and the client consents./107/ In such representation, attorneys and clients agree that the attorneys will provide discrete and limited services for the clients as part of the clients' efforts to represent themselves.  One such service is ghostwriting, which occurs when an attorney prepares documents for filing by a party who otherwise appears unrepresented in the litigation./108/

Initially, the attorney must consider what amount of assistance constitutes ghostwriting in the jurisdiction. Courts generally find "that an attorney must play a substantial role in the litigation" to be considered a ghostwriter./109/ Petitions and briefs that are "manifestly written" or prepared in "any substantial way" by an attorney will cross this threshold./110/

Ghostwriting has been defended as a practice that improves client satisfaction, helps parties advance meritorious claims or defenses that would otherwise not be made, and increases access to civil representation for clients who would otherwise be unable to afford full-service representation./111/ However, courts and bar ethics committees have criticized the practice as duping courts into giving pro se litigants undeserved leniency and allowing attorneys to avoid procedural rules and ethical obligations./112/ Ghostwriting therefore raises both ethical and procedural concerns./113/

4.2.D.1. Ethical Concerns

Various courts and ethics committees have found the practice of ghostwriting to be in conflict with the duty of candor owed to the court by giving a "false impression of the real state of affairs."/114/ They regard ghostwriting as violating Model Rules of Professional Conduct Rule 3.3(a)(1) (candor to the tribunal) and/or 4.1 (truthfulness in statements to others)./115/ Additionally, ghostwriters may run afoul of Model Rule 8.4(c)'s admonition against "conduct involving dishonesty, fraud, deceit or misrepresentation" by not disclosing their participation in drafting the document./116/ 

In 2007 the ABA released a formal opinion finding that "[a] lawyer may provide legal assistance to litigants appearing before tribunals 'pro se' and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance."/117/ The ABA committee therefore found that providing undisclosed legal assistance to pro se litigations does not violate the Model Rules of Professional Conduct so long as the assisting lawyer does not violate rules that otherwise apply to their conduct./118/ The ABA committee was not persuaded that undisclosed assistance gives an advantage to pro se litigants whose filings are generally construed liberally since the background help by a lawyer should be clear if the document is drafted effectively. Nor did the committee view ghostwriting as a violation of Model Rule 8.4 or of rules, like Rule 11, that require attorneys to assume responsibility for documents filed with a court.  Somewhat begging the question, the committee concluded that such a duty is assumed only when the attorney signs the document as counsel.

State ethics committees continue to reach divergent conclusion about the propriety of ghostwriting./119/ Some state committees have adopted the ABA position and state that no disclosure is ethically required./120/ Others have taken a more moderate view, requiring attorneys only to inform the court that the pro se litigant received professional help, for example, by including the statement "prepared by counsel" in the ghostwritten filing./121/ Other committees go further, demanding ghostwriting attorneys to reveal their full identities./122/ There is some academic support for the notion that attorneys should be required to disclose their involvement but that it should be regarded as a limited appearance that does not require a subsequent motion to withdraw./123/

Given the wide diversity of opinion on ghostwriting, before engaging in the practice, it is strongly recommended that you review any ethics opinions involving ghostwriting in your jurisdiction or seek such an opinion if there is not one on point. 

4.2.D.2 Procedural Concerns

Federal courts have been hostile to the practice of ghostwriting, finding that it violates the spirit of Rule 11 by circumventing the attorney's signature requirement./124/ Courts have specifically interpreted the purpose of Rule 11(a) as requiring attorneys to sign court documents that they prepared “in any substantial part.”/125/ However, one court acknowledged that if a ghostwriter no longer represented a litigant when the complaint is filed, the author’s failure to sign a complaint “is not at odds with the plain language of Rule 11.”/126/ Advocates should be especially wary in jurisdictions that have already addressed ghostwriting since some courts served notice that it will be sanctionable./127/ For example, a particularly detailed and recent opinion finding that ghostwriting in New Jersey violated state ethics rules and the spirit of Rule 11 is Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck./128/

Even though most federal courts addressing ghostwriting concluded that it violates Rule 11, the same courts declined to sanction the anonymous authors. The courts cited insufficient evidence,/129/ or a lack of clearly defined precedent./130/ Courts have, however, ordered pro se litigants to disclose the source of their assistance./131/ However, as more jurisdictions confront ghostwriting, attitudes are changing. Some courts have adopted the policy of striking ghostwritten submissions and indicated their willingenss to levy sanctions./132/ Although nascent in development, the authority to sanction ghostwriting includes:

  • the inherent power of the court,/133/

  • local rules governing withdrawal of representation,/134/

  • the ethical rules,/135/ and

  • the signature requirement of Rule 11./136/

At least one court offered a preventive approach for attorneys caught between protecting a pro se litigant from default and not being bound to represent the litigant throughout the entire case./137/ The suggested remedy is simply to sign and file the pleading and “simultaneously fil[e] a motion to withdraw as counsel accompanied by an appropriate explanation and brief.”/138/ However, this theoretical escape hatch poses unique problems for legal aid attorneys, who often provide limited service arrangements to clients. In such cases, withdrawal may run afoul of the duty not to withdraw if it would cause a “material adverse effect on the interests of the client.”/139/

_____________________________________________________________________________________

1.  See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (finding that, despite Rule 11 and 28 U.S.C. § 1927 both being potentially applicable, court was not required to resort to using them when inherent power of court was best suited to facts); see also Danielle Kie Hart, And the Chill Goes on--Federal Civil Rights Plaintiffs Beware: Rule 11 Vis-À-Vis 28 U.S.C. § 1927 and the Court's Inherent Power, 37 Loy. L.A. L. Rev. 645 (2004) (exploring interaction of Rule 11, § 1927, and inherent power of court, and their chilling effect on development of common law).

2. Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 245 (1st Cir. 2010) (actions during trial); Christian v. Mattel, Incorporated, 286 F.3d 1118, 1129-31 (9th Cir. 2002) (discovery abuses and other bad conduct).

3. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 397 (1990).

4. Fed. R. Civ. P. 1;  Fed. R. Civ. P. 11 advisory committee’s notes   (1993).

5. Fed. R. Civ. P. 11(a).

6. “Other papers” is broadly interpreted. See, e.g., Becker v. Montgomery, 532 U.S. 757, 763 (2001) (notice of appeal); Apolistic Pentecostal Church v. Colbert, 169 F.3d 409, 417 (6th Cir. 1999) (garnishee disclosure).  However, Rule 11 does not apply to discovery. See Fed. R. Civ. P. 11(d) ("This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rule 26 through 37.").

7. Becker, 532 U.S. at 764. Should a filing be made without a handwritten signature, the clerk’s office should return it and a substitute promptly filed. See  Fed. R. Civ. P. 11(a) .

8.  Fed. R. Civ. P. 5(d)(3); see also Fed. R. Civ. P. 5 advisory committee’s notes (1996) (“An electronic filing that complies with the local rule satisfies all requirements for filing on paper, signature, or verification.”).

9. Fed. R. Civ. P. 11(a).

10. Fed. R. Civ. P. 11 advisory committee’s notes (1993).

11. Business Guides, Incorporated v. Chromatic Communications Enterprises , 498 U.S. 533, 546 (1991).

12. Fed. R. Civ. P. 11(b).

13. See e.g., Buster v. Greisen, 104 F.3d 1186, 1190 n.4 (9th Cir. 1997) (holding that district court could impose sanctions on plaintiff for continuing to argue frivolous contentions asserted in complaint even when action was filed in state court and removed). See also Fabriko Acquisition Corporation v. Prokos, 536 F.3d 605, 610 (7th Cir. 2008).

14. Fed. R. Civ. P. 11 advisory committee’s notes (1993). At the same time, a voluntary dismissal of a complaint does not divest the trial court of jurisdiction to issue Rule 11 sanctions. Cooter & Gell, 496 U.S. at 395.

15. Fed. R. Civ. P. 11 advisory committee’s notes (1993). See Samuels v. Wilder, 906 F.2d 272, 275 (7th Cir. 1990) (updating of papers that were not sanctionable when filed is not required); but see Merritt v. International Association of Machinists and Aerospace Workers, 613 F.3d 609, 626 (6th Cir. 2010).

16. Fed. R. Civ. P. 11 advisory committee's notes (1993) (Rule 11 "does not cover matters arising for the first time during oral presentations to the court, when counsel may make statements that would not have been made if there had been more time for study and reflection."). See also Columbia Venture LLC v. FEMA (In re Bees), 562 F.3d 284, 289 (4th Cir. 2009) (court could not sanction attorney for her erroneous statements that were not advocated previously in written submission).

17. Phonometrics, Incorporated v. Econony Inns of America, 349 F.3d 1356, 1361 (Fed. Cir. 2003), cert. denied sub nom., Sutton v. Interstate Hotels, LLC, 541 U.S. 1010 (2004).

18. Coonts v. Potts, 316 F.3d 745, 753 (8th Cir. 2003).

19. CQ International Company v. Rochon International Incorporated, USA, 659 F.3d 53, 62 (1st Cir. 2011).

20. Wigod v. Chicago Mercantile Exchange, 981 F.2d 1510, 1523 (7th Cir. 1992) (sanctioned attorney in antitrust case failed to interview prior counsel and available witnesses); Smith v. Our Lady of the Lake Hospital, Incorporated, 960 F.2d 439, 446 (5th Cir. 1992) (attorney receiving case from another attorney may place some reliance on other attorney's prior investigation).

21. Dubois v. U.S. Department of Agriculture, 270 F.3d 77, 82-83 (1st Cir. 2001).

22. CQ International Company, 659 F.3d at 63.

23. Fed. R. Civ. P. 11(b)(1). This list is not exclusive. Actions intended to embarrass an opposing party may, for example, be sanctionable under Fed. R. Civ. P. 11(b)(1). See Whitehead v. Food Max of Mississippi, 332 F.3d 796, 807 (5th Cir.) (en banc), cert. denied, 540 U.S. 1047 (2003). So may actions filed to make a political point. See Saltany v. Reagan, 886 F.2d 438, 440 (D.C. Cir. 1989); but see Sussman v. Bank of Israel, 56 F.3d 450, 459 (2d Cir. 1995) (exerting pressure by generating adverse publicity is not an improper purpose), cert. denied 516 U.S. 916 (1995) .

24. See FDIC v. MAXXAM, Incorporated, 523 F.3d 566, 581 (5th Cir. 2008); G.C. & K.B. Investments, Incorporated v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003); Margo v. Weiss, 213 F.3d 55, 65 (2d Cir. 2000).

25. See Jerold S. Solovy et al., Sanctions Under Rule 11: A Cross-Circuit Comparison, 37 Loy. L.A. Rev. 727, 729 (2004); MAXXAM, 523 F.3d at 581.

26. See MAXXAM, 523 F.3d at 585-86; G.C. & K.B. Investments, 326 F.3d at 1110; see also Solovy, supra note 25, at 729-30.

27. In Szabo Food Service, Incorporated v. Canteen Corporation, 823 F.2d 1073, 1083 (7th Cir. 1987), cert. dismissed, 485 U.S. 901 (1988), the Seventh Circuit referred to the improper purpose prong as the "subjective component" of Rule 11 and stated that subjective bad faith was part of the analysis. At least two other circuits also claim to use an improper purpose test with at least some subjective component. See e.g., Clark v. UPS, 460 F.3d 1004, 1010 (8th Cir. 2006) (referring to district court’s finding of subjective motivation), cert. denied sub nom., Buchanan v. UPS, Incorporated, 549 U.S. 1340 (2007); see also In re Kunstler, 914 F.2d 505, 519 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991) (holding that subjective beliefs revealed through admission can be viewed as objective evidence of  improper purpose).

28. Fed. R. Civ. P. 11 .

29. See Silva v. Witschen, 19 F.3d 725, 730 (1st Cir. 1994) (upholding sanctions when proper motive was mixed with improper objective of pressuring defendants); Sussman, 56 F.3d at 459 (2d Cir. 1995) ("A party should not penalized for or deterred from seeking and obtaining warranted judicial relief merely because one of his multiple purposes in seeking that relief may have been improper."); In re Kunstler, 914 F.2d at 518 ("if a complaint is filed to vindicate rights in court, and also some other purpose, a court should not sanction counsel for an intention that the court does not approve, so long as the added purpose is not undertaking in bad faith and is not so excessive as to eliminate a proper purpose. Thus, the purpose to vindicate rights in court must be central and sincere.").

30. Sussman, 56 F.3d at 459 (“[W]hatever the analysis applicable to motions and other papers filed after the commencement of the litigation, special care must be taken to avoid penalizing the filing of a nonfrivolous complaint, for otherwise a plaintiff who has a valid claim may lost his right ‘to vindicate his rights in court.’”); Townsend v. Holman Consulting Corporation, 929 F.2d 1358, 1362 (9th Cir. 1990) (en banc) (“With regard to complaints which initiate actions, we have held that such complaints are not filed for an improper purpose if they are non-frivolous . . . . The reason for this rule regarding complaints is that the complaint is, of course, the document which embodies the plaintiff’s cause of action and it is the vehicle through which he enforces his substantive legal rights.”) (citations omitted); Burkhart v. Kinsley Bank, 852 F.2d 512, 515 (10th Cir. 1988) (If counsel filed complaint that was non-frivolous, “then any suggestion of harassment would necessarily fail.”).

31. Sussman, 56 F.3d at 459.

32. See In re Kunstler, 914 F.2d at 518 (finding that court may sanction otherwise colorable complaint if purpose to vindicate rights in court is not “central and sincere”); MAXXAM, 523 F.3d at 583-84 (court considered, and then rejected, balancing inquiry suggesting that such test would be too vague); Senese v. Chicago Area I. B. of T. Pension Fund, 237 F.3d 819, 823-24 (7th Cir. 2001) (Rule 11 may be violated when a complaint with a legal and factual basis is filed for an improper purpose).

33. In re Kunstler, 914 F.2d at 518 (finding that “the purpose to vindicate rights in court must be central and sincere” and that “filing a motion or pleading without a sincere intent to pursue it will garner sanctions”).

34MAXXAM, 523 F.3d at 583-84.

35. Id.

36. Whitehead, 332 F.3d at 805; Pierce v. F.R. Tripler and Company, 955 F.2d 820, 831 (2d Cir. 1992).

37. Fed. R. Civ. P. 11(b)(2).

38. ICU Medical, Incorporated v. Alaris Medical Systems, Incorporated, 558 F.3d 1368, 1381 (Fed. Cir. 2009) (citing Christian, 286 F.3d at 1127); see also Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (failure to allege essential elements of Section 1985(3) claim is sanctionable).

39. Thompson v. RelationServe Media, Incorporated, 610 F.3d 628, 665 (11th Cir. 2010).

40. Raylon LLC v. Complus Data Innovations, Incorporated, 700 F.3d 1361, 1368 (Fed. Cir. 2012); Jenkins v. Methodist Hospital, 478 F.3d 255, 264 (5th Cir. 2007), cert. denied, 552 U.S. 825 (2007); Young v. City of Providence, 404 F.3d 33, 40 (1st Cir. 2005); Fed. R. Civ. P. 11 advisory committee’s notes (1993) (The rule “establishes an objective standard, intended to eliminate any empty-head pureheart justification for patently frivolous arguments.”). See also Business Guides Incorporated, 498 U.S. 533, 549-51 (1991) (objective reasonableness standard applies to both attorneys and represented parties); but see In re Pennie & Edmonds, 323 F.3d 86 (2d Cir. 2003) (Second Circuit is alone among circuits holding that subjective bad faith is required when court issues sanctions sua sponte, thereby not permitting attorney to withdraw filing under safe harbor provision). 

41. Morris v. Wachovia Securities, Incorporated, 448 F.3d 268, 277 (4th Cir. 2006) (quoting Hunter v. Earthgrains Company Bakery, 281 F.3d 144, 153 (4th Cir. 2002)). See Ario v. Underwriting Members of Syndicate 53, 618 F.3d 277, 297 (3d Cir. 2010) (unpersuasive and losing argument is not invariably frivolous).

42. See, e.g., Hunter, 281 F.3d at 156-57 (reversing sanction of attorney who inartfully argued for reversal of Circuit precedent); Gibson v. Chrysler Corporation, 261 F.3d 927, 949 (9th Cir. 2001), cert. denied sub nom., DaimlerChrysler Corporation v. Gibson, 534 U.S. 1104 (reversing award of Rule 11 sanctions because “we recognize the difficulties faced by parties who seek to advance novel legal arguments”); Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998) (“[T]he purpose of Rule 11 is to deter frivolous lawsuits and not to deter novel legal arguments or cases of first impression.”); Peloza v. Capistrano Unified School District, 37 F.3d 517, 524 (9th Cir. 1994), cert. denied, 515 U.S. 1173 (1995) (dismissed complaint was not sanctionable as it raised important questions of first impression); United States v. Alexander, 981 F.2d 250, 253 (5th Cir. 1993) (“Parties who argue points of first impression in a circuit are not ordinarily the recipients of Rule 11 sanctions order,”); Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990), cert. denied, 498 U.S. 1028 (1991) (“[T]o constitute a frivolous legal position for purposes of Rule 11 sanction, it must be clear under existing precedents that there is no chance of success and no reasonable argument to extend, modify or reverse the law as it stands.”) (citations omitted).

43Morris, 448 F.3d at 277 (internal quotations omitted).

44. Gilmore v. Shearson/Am. Express, Incorporated, 811 F.2d 108, 111-12 (2d Cir. 1987).

45. Fed. R. Civ. P.11 advisory committee’s notes (1993). See Savino v. Computer Credit Incorporated, 164 F.3d 81, 88 (2d Cir. 1998).

46. See Fed. R. Civ. P. 11 advisory committee’s notes (1993) (“Although arguments for a change of law are not required to be specifically identified, a contention that is so identified should be viewed with greater tolerance under the rule.”); Margo, 213 F.3d 55, 64 (2d Cir. 2000).

47. Fed. R. Civ. P.11(b)(3). See, e.g., U.S. Bank National Association v. Sullivan-Moore, 406 F.3d 465, 469-70 (7th Cir. 2005) (sanctions upheld where law firm caused eviction of tenant knowing that service address was incorrect).

48. Lucas v. Duncan, 574 F.3d 772, 777 (D.C. Cir. 2009).

49. Divane v. Krull Electric Company, 200 F.3d 1020, 1028 (7th Cir. 1999) (quoting Brown v. Federation of State Medical Boards of the U.S., 830 F.2d 1429, 1435 (7th Cir. 1987)). See also Jones v. International Riding Helmets Ltd., 49 F.3d 692, 695 (11th Cir. 1995); Rodick v. City of Schenectady, 1 F.3d 1341, 1351 (2d Cir. 1993) (“Where an attorney is forced to plead under exigent circumstances, her reliance on the affidavits of her clients should be sufficient to constitute reasonable investigation for purposes of Rule 11.”) (citing Hamer v. Career College Association, 979 F.2d 758, 759 (9th Cir. 1992)).

50. Kiobel v. Millson, 592 F.3d 78, 81 (2d Cir. 2010) (finding that counsel's statements were possibly factually wrong and overstated, but not utterly lacking support, and therefore not sanctionable) (internal quotations omitted).

51. Lucas, 574 F.3d at 778.

52. Id. at 780. 

53. Fed. R. Civ. P. 11 advisory committee’s notes (1993); see also Kiobel, 592 F.3d at 83; In re Bees, 562 F.3d at 288.  

54. Jenkins, 478 F.3d 255, 265 (5th Cir. 2007).

55. Fed. R. Civ. P. 11(b)(4).

56. Fed. R. Civ. P. 11(c).

57. Id.

58. Fed. R. Civ. P. 11 advisory committee’s notes (1993).

59. Id. (non-monetary sanctions include striking offending filing; admonition, reprimand, or censure; attendance at continuing legal education courses; or referral to disciplinary authorities).

60. Id. See also Methode Electronics, Incorporated v. Adam Technologies, Incorporated, 371 F.3d 923, 926 (7th Cir. 2004) (court cannot award attorney fees as sanction sua sponte); Baffa v. Donaldson, Lufkin & Jenrette Securities Corporation, 222 F.3d 52, 57 (2d Cir. 2000) (“[A]bsent a specific motion for attorneys’ fees, the court only had authority to order sanctions payable to the court.”).

61. Fed. R. Civ. P. 11(c)(2). See Rentz v. Dynasty Apparel Industries, 556 F.3d 389, 400 (6th Cir. 2009) (“[I]t is clear that Rule 11 is not intended to be a compensatory mechanism in the first instance, it is equally clear that effective deterrence sometimes requires compensating the victim for attorney fees arising from abusive litigation.”); but see Massengale v. Ray, 267 F.3d 1298, 1302 (11th Cir. 2001) (Rule 11 does not allow for award of attorney fees to pro se litigant as sanction). At the same time, the court may account for the attorney’s financial condition in determining whether and the degree to which to issue monetary sanctions. DiPaolo v. Moran, 407 F.3d 140, 145-46 (3rd Cir. 2005).

62. Fed. R Civ. P. 11 advisory committee’s notes (1993); see also Rentz, 556 F.3d at 402 (finding that while sanction of $250 against young and inexperienced attorney was possibly enough to deter his repetition, it was insufficient to deter other attorneys).

63. Lamboy-Ortiz, 630 F.3d at 249.

64. Fed. R. Civ. P. 11(c). See also Business Guides, Incorporated, 498 U.S. at 544-48 (1991) (Rule 11 applies to represented parties who sign court filings). A court may not, however, sanction a represented party for advancing a frivolous legal argument. It is the solely the counsel’s responsibility to ensure there is adequate legal support. Fed. R. Civ. P. 11(c)(2)(A). Rule 11 also applies to pro se litigants but may account for the pro se litigant’s financial situation in determining whether to award monetary sanctions.  See Moore v. SouthTrust Corporation, 392 F. Supp. 2d 724, 736 (E.D. Va. 2005).

65. This 1993 provision effectively overturns Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120 (1989). The advisory committee’s notes justify this expansion of potential liability on the ground that the safe-harbor provision, discussed below, makes it appropriate to regard a law firm as jointly responsible for the sanctionable conduct of its agents. Fed. R Civ. P. 11 advisory committee’s notes (1993); but see Rentz, 556 F.3d at 397 (upholding district court’s decision not to sanction law firm where attorney violated Rule 11 just after joining the firm in case  attorney brought with him and with which others at firm had little to no involvement).

66. While there are no decisions holding legal service organizations jointly accountable, examples of government agencies being held jointly accountable may be instructive. See, e.g., MAXXAM, 523 F.3d at 583-84 (5th Cir. 2008)  (imposing sanctions against the FDIC as a whole); see also In re Bees, 562 F.3d 284 (sanctions had been imposed against FEMA as whole and against individual attorney); but see 1-10 Industry Associates LLC v. United States, 528 F.3d 859 (Fed. Cir. 2008) (sanctions levied against individual attorney at Department of Justice) (sanctions reversed on other grounds).

67. Fed. R. Civ. P. 11 advisory committee’s notes (1993).

68. The Second Circuit has held that the proposed motion need not be accompanied by a supporting memorandum. Star Mark Management v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 175-76 (2d Cir. 2012). Some courts adhere strictly to the requirement that a motion be served. See Roth v. Green, 466 F.3d 1179 (10th Cir. 2006), cert. denied, 552 U.S. 814 (2007) (court found that informal letter addressed to offending party did not suffice to satisfy safe harbor requirements when plain language of rule required copy of actual motion). See also Gordon v. Unifund CCR Partners, 345 F.3d 1028, 1029 (8th Cir. 2003) (reversing award of Rule 11 sanction when movant did not comply with separate motion requirement in safe harbor provision). However, the Seventh Circuit has held that a letter sent to an offending party can constitute substantial compliance with Rule 11(c)(1)(A). See Matrix IV, Incorporated v. American National Bank and Trust Company, 649 F.3d 539, 552 (7th Cir. 2011); Nisenbaum v. Milwaukee County, 333 F.3d. 804, 808 (7th Cir. 2003).  

69. Fed. R. Civ. P. 11(c)(1)(A). Counsel is expected to give informal notice prior to drafting and serving such a motion. Fed. R. Civ. P. 11 advisory committee’s notes (1993). While the rule encourages informal resolution, counsel must be sure to serve an actual copy of the motion for sanctions 21 days prior to filing with the court. Additionally, the Fourth Circuit has held that the safe harbor provisions are not jurisdictional and therefore waivable. Brickwood Contractors, Incorporated v. Datanet Engineering Incorporated, 369 F.3d 385, 393 (4th Cir. 2004) (en banc); Rector v. Approved Federal Savings Bank, 265 F.3d 248, 253 (4th Cir. 2001).

70. Most courts have held that Rule 11 motions must be filed at least 21 days prior to the conclusion of the case or resolution of the issue prompting the motion. Peer v. Lewis, 606 F.3d 1306, 1313 (11th Cir. 2010). The Seventh Circuit disagrees. Matrix IV, 649 F.3d at 552-53 (motion may be filed post-judgment so long as there was previous substantial compliance with fair harbor rule).

71. Filing a timely motion to amend the challenged pleading that omitted assertions found objectionable is an acceptable response to a "safe harbor" motion; a dismissal with prejudice is not required. Sneller v. City of Bainbridge Island, 606 F.3d 636, 639 (9th Cir. 2010).

72. Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998).

73. Fed. R. Civ. P.11(c)(1)(B); see 1-10 Industry Associates LLC v. United States, 528 F.3d 859, 867 (Fed. Cir. 2008); Johnson v. Cherry, 422 F.3d 540, 551-53 (7th Cir. 2005); Plaintiffs' Baycol Steering Committee v. Bayer Corp., 419 F.3d 794, 809-10 (8th Cir. 2005).

74. See In re DeVille, 361 F.3d 539, 549 (9th Cir. 2004); Margo v. Weiss, 213 F.3d 55, 64 (2d Cir. 2000).

75. See Columbia Venture LLC, 562 F.3d 284, 287 (4th Cir. 2009) (internal quotations omitted). Additionally, because the Advisory Committee’s notes to Rule 11(c)(3) explained that “show cause orders will ordinarily be issued only in situations that are akin to a contempt of court” and therefore do not require a "safe harbor" provision, at least one Circuit has required a finding of subjective bad faith when the sanctions are imposed sua sponte and the lawyer has no opportunity to withdraw or amend the filing. See In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir. 2003) (“We conclude that where, as here, a sua sponte Rule 11 sanction denies a lawyer the opportunity to withdraw the challenged document pursuant to the 'safe harbor' provision of Rule 11(c)(1)(A), the appropriate standard is subjective bad faith.”); see also ATSI Communications, Incorporated v. Shaar Fund, Ltd., 579 F.3d 143 (2d Cir. 2009) (stating that subjective bad faith should be required if the sanctions proceeding is initiated “'long after' the lawyer had an opportunity to amend or withdraw”). Other circuits have declined to follow. See, e.g., Jenkins, 478 F.3d at 264; Young v. City of Providence ex rel. Napolitano, 404 F.3d 33, 40 (1st Cir. 2005) (declining to follow Pennie). Some circuits have been careful to avoid the issue. See, e.g., Lucas, 574 F.3d 772, 776 (D.C. Cir. 2009); 1-10 Industry Associates, LLC, 528 F.3d at 866; Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1256 (11th Cir. 2003).

76. Fed. R. Civ. P.11(c)(3).

77. The Supreme Court in Cunningham v. Hamilton County, 527 U.S. 198 (1999) held that discovery sanctions issued under Rule 37 were not appealable under the collateral order doctrine. While the courts of appeals were previously divided on the point, Cunningham strongly suggests that Rule 11 sanctions are not immediately appealable either. See, e.g., Williams v. Midwest Employers Casualty Company, 243 F.3d 208 (5th Cir. 2001).

78. Lawrence v. Richman Group of Connecticut, LLC, 620 F.3d 153, 156 (2d Cir. 2010); Nyer v. Winterthur International, 290 F.3d 456, 460 (1st Cir. 2002); see also Cooter & Gell v. Hartmarx Corporation, 496 U.S. 384, 405 (1990).

79. See Lucas, 574 F.3d at 775 (citations omitted).

80. Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986) (internal citations omitted).

81. Id.; see also Dreiling v. Peugot Motors of America, 768 F.2d 1159, 1165 (10th Cir. 1985).

82. Enmon v. Prospect Capital Corporation, 675 F.3d 138, 147 (2d Cir. 1986); BDT Products, Incorporated v. Lexmark International, Incorporated, 602 F.3d 742, 744 (6th Cir. 2010) (law firms may not be sanctioned); Claiborne v. Wisdom, 414 F.3d 715, 724 (7th Cir. 2005) (same).

83. 28 U.S.C. § 1927 , amended by Antitrust Procedural Improvements Act of 1980, Pub. L. No. 96-349, § 3, 94 Stat. 1154, 1156. See generally Janet Eve Josselyn, The Song of the Sirens-Sanctioning Lawyer Under 28 U.S.C. § 1927, 31 B.C. L. Rev. 477, 478 (1990). Additionally, courts may be using § 1927 more frequently as a result of the 1993 amendments to Rule 11, which instituted the 21-day safe harbor provision. Since voluntarily withdrawn filings are not sanctionable, parties may be attempting to "sidestep" Rule 11 in the hope of getting attorney fees under § 1927. See generally Hart, supra note 1 (arguing that "sidestepping" accounts for the increased use of § 1927 and that this phenomenon defeats the purpose of the 1993 revision of Rule 11, which was supposed to remove the chilling effect suffered by civil rights litigants engaged in attempting good faith extensions of the law).

84. Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010). The court’s inherent power to sanction is broader still in that it permits sanctions for conduct beyond the filing of documents or “multiplying” proceedings. Yet, it requires a finding of bad faith for an award of attorney fees. Chambers v. NASCO, Incorporated, 501 U.S. 32, 43-46 (1991).

85. United States v. International Brotherhood of Teamsters, 948 F.2d 1338, 1345-46 (2d Cir. 1991).

86. De Dios v. International Realty and Investments, 641 F.3d 1071, 1076 (9th Cir 2011); Jensen v. Phillips Screw Company, 546 F.3d 59, 65 (1st Cir. 2008).

87. Equal Employment Opportunity Commission v. Great Steaks, Incorporated, 667 F.3d 510, 522 (4th Cir. 2012); Trulis v. Barton, 107 F.3d 685, 694 (9th Cir. 1995); Oliveri, 803 F.2d at 1273.

88Lee v. L.B. Sales Incorporated, 177 F.3d 714, 718 (8th Cir. 1999). See also Lamboy-Ortiz, 630 F.3d at 245-46; Hall v. Liberty Life Assurance Company, 595 F.3d 270, 275 (6th Cir. 2010); Amlong and Amlong v. Denny's, Incorporated, 500 F.3d 1230, 1240 (11th Cir. 2006); Claiborne, 414 F.3d at 721; Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc).

89. See Hart, supra note 1, at 653.

90. Johnson v. Cherry, 422 F.3d 540, 551-52 (7th Cir. 2005).

91. Cambridge Toxicology Group v. Exnicios, 495 F.3d 169, 180-81 (5th Cir. 2007); Jones v. Pittsburgh National Corporation, 899 F.2d 1350, 1359 (3rd Cir. 1990).

92. Lamboy-Ortiz, 630 F.3d at 247-48.

93. Haynes v. City and County of San Francisco, 688 F.3d 984, 987-88 (9th Cir. 2012) (may account for ability to pay); Shales v. General Chauffeurs, Sales Drivers & Helpers Local Union, 557 F.3d 746, 749 (7th Cir. 2009); Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1206-07 (10th Cir. 2008) (same; district court has discretion to award fees based on straight time or loadstar basis).

94. See Hart, supra note 1, at 653.

95. Chambers, 501 U.S. 32, 42 (1991) (quoting NASCO, Inc. v. Calcasieu Television & Radio, Inc., 894 F.2d 696, 702 (5th Cir. 1990)).

96. Id. at 46, 49 ("The Court's prior cases have indicated that the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct."). But see Peer, 606 F.3d at 1315 ("Generally, if appropriate sanctions can be imposed under provisions such as Rule 11, courts should not exercise their inherent power.").

97. Id.

98. See id. at 44.

99. See id. at 46, 57 ("As long as a party receives an appropriate hearing . . . the party may be sanctioned for abuses of process occurring beyond the courtroom . . . .").

100. See id. at 44-45. See Stalley v. Mountain States Health Alliance, 644 F.3d 349, 352 (6th Cir. 2011) (monetary sanction can exceed amount needed for deterrence). However, the court should account for the sanctioned party's ability to pay the monetary sanction. Martin v. Automobili Lamborghini Exclusive, Incorporated, 307 F.3d 1332, 1337 (11th Cir. 2002).

101. See Chambers, 501 U.S. at 45.

102. Id.; Ali v. Tolbert, 636 F.3d 622, 627 (D.C. Cir. 2011);  Amlong & Amlong, 500 F.3d at 1251. But see United States v. Seltzer, 227 F.3d 36, 40-42 (2d Cir. 2000) (distinguishing between sanctioning attorneys as officers of court, which does not require bad faith, and attorneys in their capacity as counsel for clients, which does).

103. Chambers, 501 U.S. at 44 ("Because of their very potency, inherent powers must be exercised with restraint and discretion."); Methode Electronics, 371 F.3d at 927.

104. Chambers, 501 U.S. at 50 ("A court must . . . comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees."); Metz v. Unizan Bank, 655 F.3d 485, 491 (6th Cir. 2011).

105. Id. at 55.

106. See Jeffrey P. Justman, Capturing The Ghost: Expanding  Federal Rule of Civil Procedure 11 To Solve Procedural Concerns With Ghostwriting, 92 Minn. L. Rev. 1246, 1252 (2008).

107. Id. at 1252.

108. Model Rules of Prof'l Conduct 1.2(c).

109. Compare Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001) (participating in drafting appellate brief constitutes “per se substantial assistance” in violation of Rule 11) with Ricotta v. California, 4 F. Supp. 2d 961, 986-87 (S.D. Cal. 1998), cert. denied, 528 U.S. 864 (1999) (distinguishing ghostwriting from mere “informal advice”).

110. See Ricotta, 4 F. Supp. 2d 961 at 987.

111See, e.g., Justman, supra note 106, at 1248; see Ira P. Robbins, Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to Courts, 23 Geo. J. Legal Ethics 271 (Spring 2010); John C. Rothermich, Ethical and Procedural Implications of “Ghostwriting” for Pro Se Litigants: Toward Increased Access to Civil Justice, 67 Fordham L. Rev. 2687, 2697 (1999). See also Comment, Attorney Ghostwriting for Pro Se Litigants - A Practical and Bright-line Solution to Resolve the Split of Authority Among Federal Circuits and State Bar Associations, 65 SMU L. Rev. 653 (Summer 2012).

112. See, e.g., Michael W. Loudenslager, Giving Up The Ghost: A Proposal For Dealing With Attorney "Ghostwriting" of Pro se Litigants' Court Documents Through Explicit Rules Requiring Disclosure And Allowing Limited Appearances For Such Attorneys, 92 Marq. L. Rev. 103 (2008).

113Johnson v. Board of County Commissioners, 868 F. Supp. 1226 (D. Colo. 1994), cert. denied sub nom., Greer v. Kane, 519 U.S. 1042 (1996).

114. See, e.g., Justman, supra note 106, at 1259  (quoting Conn. Bar Ass'n Comm. on Prof'l Ethics, Informal Op. 98-5 (1998)).

115. See Loudenslager, supra note 112, at 110-12.  

116See id; see also  Justman, supra note 106, at 1259 .

117.  ABA Comm on Ethics & Prof'l Responsibility, Formal Op. 07-446 (2007) (Opinion superseded ABA Inf. Op. 1414 (June 6, 1978), which "took a middle ground, stating that disclosure of at least the fact of legal assistance must be made to avoid misleading the court and other parties, but that the lawyer providing assistance need not be identified.").

118. Id. ("We conclude that there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer's conduct.").

119. See Robbins, supra note 111, at 286 (surveying 24 states addressing ghostwriting); Loudenslager, supra note 112, at 127-38  (discussing range of positions taken by various ethics committees).

120. See, e.g., Utah State Bar Ethics Advisory Opinion Comm., Formal Op. 08-01 (2008) ("Under the Utah Rules of Professional Conduct, and in the absence of an express court rule to the contrary, a lawyer may provide legal assistance to litigants appearing before tribunals pro se and help them prepare written submissions without disclosing or ensuring the disclosure to others of the nature or extent of such assistance"); Arizona Eth. Op. 05-06 (2005) (Limited Scope Representation; Candor to Tribunal; Fees) ("The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona.").

121. See, e.g., N.Y. City Bar Ass'n Comm. on Prof'l & Judicial Ethics, Formal Op. 1987-2 (1987) (New York, when confronted with ghostwriting, took position that "[a]t the minimum, the court and adverse counsel must be informed that the litigant is, or will be, 'receiving assistance from a lawyer.' It would be appropriate to endorse the pleading, 'Prepared by Counsel.'").

122. See, e.g., Ky. Bar Ass'n, Ethics Op. E-343 (1991).

123. See Loudenslager,  supra note 112, at  142-48 .

124. See, e.g., Gordon v. Dadante, No. 1:05-CV-2726 (N.D. Ohio June 26, 2009); Bittle v. Electrical Railway Improvement Company, 576 F. Supp. 2d 744, 755 n.9 (M.D.N.C. 2008); In re Brown, 354 B.R. 535, 541-42 (Bkrtcy. N.D. Okla. 2006) (Court, interpreting bankruptcy court's equivalent to Rule 11, noted, "Ghostwriting is a practice which has been met with universal disfavor in the federal courts."); Duran v. Carris, 238 F.3d 1268, 1272 (10th Cir. 2001); Ellis v. State of Maine, 448 F.2d 1325 (1st Cir. 1971) ("What we fear is that in some cases actual members of the bar represent petitioners, informally or otherwise, and prepare briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar, typified by F.ed R. Civ. P. 11 . . . ." ); Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075, 1078-79 (E.D. Va. 1997) ("The Attorneys' reasoning, while not at odds with the plain language of Rule 11, undermines the purpose of the signature certification requirement of the rule."); United States v. Eleven Vehicles, 966 F. Supp. 361, 367 (E.D. Pa. 197) ("[G]host writing arrangements interfere with the Court's ability to superintend the conduct of counsel and parties during the litigation."); Johnson v. Board of County Commissioners, 868 F. Supp. 1226, 1231-32 (D. Colo. 1994). But cf. In re Liu, 664 F.3d 367, 372 (2d Cir. 2011) (absence of rule in New York precludes discipline for knowing failure to disclose ghostwriting).

125. Johnson, 868 F. Supp. at 1232; see also Duran, 238 F.3d at 1273.

126. Laremont-Lopez, 968 F. Supp. at 1078.

127. See Duran, 238 F.3d at 1273 (threatening to sanction attorneys for future violations); Davis v. Bacigalupi, 711 F. Supp. 2d 609, 626 (E.D. Va. April 29, 2010); Kircher v. Township of Ypsilanti, 2007 U.S. Dist. LEXIS 93690 at *11 (E.D. Mich. Dec. 21, 2007); Johnson, 868 F. Supp. at 1232.

128. Delso v. Trustees for the Retirement Plan for the Hourly Employees of Merck, No. 04-3009 (D.N.J. March 5, 2007).

129. See Laremont-Lopez, 968 F. Supp. at 1077.

130. See Duran, 238 F.3d at 1273; Ricotta, 4 F. Supp. 2d at 987-88 (suggesting that local rule and bar associations should address ghostwriting directly); Johnson, 868 F. Supp. at 1227 (declining to impose sanctions despite finding that attorney engaged in inappropriate ghostwriting).

131. Johnson v. City of Joliet, No. o4 C 6426 (N.D. Ill. Feb. 13, 2007).

132. See Gordon v. Dadante, No. 1:05-CV-2726 (N.D. Ohio Jun. 26, 2009) ("This Court will continue to strike ghostwritten submissions from any party and will, in the future, entertain motions for contempt against a party submitting ghostwritten material.").

133. See Laremont-Lopez, 968 F. Supp. at 1077 n.2. See generally Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 n.7 (1987) (affirming inherent authority of courts to punish for contempt).

134. Laremont-Lopez, 968 F. Supp. at 1079 ("[T]he practice of ghost-writing pleadings or motions for otherwise pro se litigants allows attorneys to circumvent Local Rule 83.1(G) which provides that once an attorney has entered an appearance in a civil or criminal action, withdrawal is permitted only by order of the court, and after reasonable notice to the party represented.").

135Johnson, 868 F. Supp. at 1232 (suggesting that ghostwriting constitutes extensive undisclosed assistance to pro se litigant in violation of then Model Code of Professional Responsibility DR 1-102(A)(4)).

136. See Fed. R. Civ. P. 11; Wesley v. Don Stein Buick Incorporated, 987 F. Supp. 884, 886 (D. Kan. 1997); Laremont-Lopez, 968 F. Supp. at 1078-79; Johnson, 868 F. Supp. at 1231 (focusing on risk that ghostwriting will enable attorneys to sidestep Rule 11’s certification requirement that “allegations and factual contentions have evidentiary support”); Rothermich, supra note 111, at 2716-18 (1999).

137. Laremont-Lopez, 968 F. Supp. at 1077 n.2.

138. Id.

139. Model Rule of Professional Conduct 1.16 (2007). See also Jona Goldschmidt, In Defense of Ghostwriting, 29 Fordham Urban L.J. 1145, 1175-78 (2002).

Updated 2013 by Jeffrey S. Gutman