Lazaroff, Daniel E.

English

Loyola Marymount University

Loyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Law Review Law Reviews11-1-1994Foreword—Third Annual Fritz B. Burns Lectureon Rule 11 Reform: Progress or Retreat onAttorney SanctionsDaniel E. LazaroffThis Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola LawSchool. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@LoyolaMarymount University and Loyola Law School. For more information, please contact digitalcommons@lmu.edu.Recommended CitationDaniel E. Lazaroff, Foreword—Third Annual Fritz B. Burns Lecture on Rule 11 Reform: Progress or Retreat on Attorney Sanctions, 28 Loy.L.A. L. Rev. 1 (1994).Available at: https://digitalcommons.lmu.edu/llr/vol28/iss1/1FOREWORDTHE THIRD ANNUAL FRITZ B. BURNSLECTURE ON RULE 11 REFORM: PROGRESSOR RETREAT ON ATTORNEY SANCTIONS?Daniel E. Lazaroff*On April 8, 1994, the Fritz B. Burns Foundation and Loyola LawSchool sponsored a public lecture addressing significant recentamendments to Rule 11 of the Federal Rules of Civil Procedure re-garding sanctions for frivolous litigation.' The principal speakers atthis event were the Honorable William W Schwarzer, Senior Judge inthe United States District Court for the Northern District of Califor-nia and Director of the Federal Judicial Center, and Professor Ge-orgene M. Vairo, Associate Dean of Fordham University School ofLaw. Both speakers have now prepared articles articulating their re-spective views regarding the new Rule 11.2The now-discarded 1983 version of Rule 11 made sanctionsmandatory when lawyers failed to satisfy an objective standard of rea-sonable inquiry into the facts or law underlying a claim.3 This ap-proach to sanctions represented a dramatic departure from theoriginal 1937 version of Rule 11, pursuant to which sanctions couldonly be triggered by intentional or willful misconduct.4 The 1983amendments represented an effort to streamline the federal litigationprocess and unclog an increasingly jammed civil justice system.While the 1983 version of Rule 11 appeared sensible on its faceand had potential for alleviating some of the perceived abuses in the* Professor of Law and Cohen Chair in Law and Economics, Loyola Law School, LosAngeles; B.A., 1971, State University of New York at Stony Brook; J.D., 1974, New YorkUniversity.1. On December 1, 1993, extensive amendments to the Federal Rules of Civil Proce-dure went into effect. This included a major revision of the 1983 version of Rule 11. SeeFED. R. Civ. P. 11, Proposed Amendments to the Federal Rules of Civil Procedure, re-printed in 146 F.R.D. 401, 419-24 (1993).2. See William W Schwarzer, Rule 11: Entering a New Era, 28 Loy. L.A. L. Rav. 7(1994); Georgene M. Vairo, Rule 11: Past As Prologue, 28 Loy. L.A. L. Rav. 39 (1994).3. FED. R. Civ. P. 11, reprinted in 97 F.R.D. 165, 197 (1983).4. For discussions of the original version of Rule 11, see Robert L. Carter, The Historyarid Purposes of Rule 11, 54 FORDHAM L. Rnv. 4,4-9 (1985); Edward D. Cavanagh, Devel-oping Standards Under Amended Rule 11 of the Federal Rules of Civil Procedure, 14 HoF-STRA L. REv. 499, 503-06 (1986).2 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 28:1federal courts, judicial application of the Rule precipitated considera-ble commentary and criticism. The most frequent complaints includedconcerns that the 1983 version of Rule 11 chilled creative advocacy,particularly in the area of public interest litigation.' Further, criticsnoted that the Rule spawned time-consuming satellite litigation,6 cre-ated improper fee shifting,7 and contributed to a rising tide of incivil-ity and acrimony among lawyers and between bench and bar.8 Inshort, many argued that the cure was far worse than the disease.The December 1993 amendments to Rule 11 represented a majoreffort to address the foregoing concerns about the harshness and dele-terious impact of the 1983 rule. For example, the new Rule 11 makessanctions for violation of its provisions discretionary rather thanmandatory.9 In addition, the Rule now contains a "safe harbor" pro-5. See Edward Greer, Rule 11: Substantive Bias in Formal Uniformity After theSupreme Court Trilogy, 26 NEw ENG. L. REv. 111, 117-25 (1991); Arthur B. LaFrance,Federal Rule 11 and Public Interest Litigation, 22 VAL. U. L. REv. 331, 333-34 (1988);Daniel E. Lazaroff, Rule 11 and Federal Antitrust Litigation, 67 TUL. L. REv. 1033, 1043-54(1993); Melissa L. Nelken, Has the Chancellor Shot Himself in the Foot? Looking for aMiddle Ground on Rule 11 Sanctions, 41 HASTnNGS LJ. 383, 393-94 (1990); Melissa L.Nelken, Sanctions Under Amended Federal Rule 11-Some "Chilling" Problems in theStruggle Between Compensation and Punishment, 74 GEo. LJ. 1313, 1338-52 (1986); Ken-neth F. Ripple & Gary J. Saalman, Rule 11 in the Constitutional Case, 63 NOTRE DAME L.REv. 788, 788-89 (1988); Morton Stavis, Rule 11: Which is Worse-The Problem or theCure?, 5 GEO. J. LEGAL ETHics 597, 606-08 (1992); Mark S. Stein, Of Impure Hearts andEmpty Heads: A Hierarchy of Rule 11 Violations, 31 SANTA CLARA L. REv. 393, 413-14(1991); Carl Tobias, Environmental Litigation and Rule 11, 33 WM. & MARY L. REv. 429,429 (1992); Carl Tobias, Rule 11 Recalibrated in Civil Rights Cases, 36 VILL. L. REV. 105,106-27 (1991); Carl Tobias, Rule 11 and Civil Rights Litigation, 37 BuFF. L. REV. 485, 489-508 (1988-89); Georgene M. Vairo, Rule 11: Where We Are and Where We Are Going, 60FORDHAM L. REV. 475, 483-86 (1991); Georgene M. Vairo, Rule 11: A Critical Analysis,118 F.R.D. 189, 200-01 (1988).6. See George Cochran, Rule 11: The Road to Amendment, 61 Miss. L.J. 5, 6, 13-14,17 (1991); Lawrence M. Grosberg, Illusion and Reality in Regulating Lawyer Performance:Rethinking Rule 11, 32 VILL. L. REV. 575, 636-38 (1987); William W Schwarzer, Rule 11Revisited, 101 HARV. L. REv. 1013, 1017-18 (1988).7. See Stephen B. Burbank, The Transformation of American Civil Procedure: TheExample of Rule 11, 137 U. PA. L. REv. 1925, 1947 (1989); Judge Sam D. Johnson et al.,The Proposed Amendments to Rule 11: Urgent Problems and Suggested Solutions, 43 BAY-LOR L. REv. 647, 656 (1991).8. See Alex Elson & Edwin A. Rothschild, Rule 11: Objectivity and Competence, 123F.R.D. 361, 365-66 (1988); Glen N. Lenhoff, Some Negative Aspects of Rule 11, 67 MicH.B.J. 522, 523 (1988); Mark S. Stein, Rule 11 in the Real World: How the Dynamics ofLitigation Defeat the Purpose of Imposing Attorney Fee Sanctions for the Assertion of Friv-olous Legal Arguments, 132 F.R.D. 309, 309-10 & n.3 (1990).9. FED. R. CIv. P. 11(c), reprinted in 146 F.R.D. 401, 421 (1993).November 1994]vision to permit withdrawal from unsupportable positions and also de-emphasizes reliance on monetary sanctions. 10The critical question is whether the 1993 amendments to Rule 11will strike an acceptable balance between the need of the federalcourts to be free from wasteful, frivolous, or vexatious litigation andthe obligation of attorneys to represent their clients vigorously andimaginatively without fear of reprisal. It is fair to conclude that JudgeSchwarzer is far more optimistic about the potential benefits of the1993 amendments than Dean Vairo.Judge Schwarzer recognizes that the 1993 amendments were in-tended to address serious concerns regarding the 1983 version of Rule11.11 Nevertheless, he asserts that the recent changes build on thelaudable initiative reflected in the 1983 Rule-regulating lawyers' be-havior and promoting the enforcement of professional obligations.'"The Judge emphasizes that Rule 11 must be read in pari materia withthe new Rule 26 regarding mandatory prediscovery disclosure.' 3 Hesuggests that the interplay between these mutually reinforcing rulesheightens the professional obligations of lawyers in furtherance of theoverall aims of the federal rules.14 In sum, Judge Schwarzer appearsoptimistic that Rule 11, together with other recent amendments to theFederal Rules of Civil Procedure, will promote and enhance profes-sional behavior by advocates in the federal courts.In rather sharp contrast, Dean Vairo is far less sanguine about thebenefits to be derived from the new Rule 11. Although she acknowl-edges that the recent changes are a "step in the right direction" fromthe perspective of Rule 11 critics,' 5 Dean Vairo remains concernedabout lingering conceptual and practical difficulties associated withthe revised rule.' 6 In fact, Dean Vairo seems unconvinced that therevised rule will adequately address concerns such as chilling effectsand the deterioration of the attorney-client relationship.' 7 The poten-10. Id. at 421-23; see also FED. R. Civ. P. 11, Proposed Amendments to the FederalRules of Civil Procedure, advisory committee's notes, reprinted in 146 F.R.D. 583, 587-88(1993) [hereinafter 1993 advisory committee's notes] (discussing variety of possible sanc-tions that court has available).11. Schwarzer, supra note 2, at 12-13.12. Id. at 23.13. Id. at 17-19.14. Id. at 19.15. Vairo, supra note 2, at 41.16. Id.17. Id. at 42-56.FOREWORD4 LOYOLA OF LOS ANGELES LAW REVIEWtial for continued satellite litigation and fee shifting also troublesDean Vairo.' sWhile Judge Schwarzer emphasizes the potential benefit of thenew Rule 11 in promoting heightened professionalism," Dean Vairois more concerned that the independence of lawyers will continue tobe threatened.2 That is, the emphasis on the "officer of the court"aspect of lawyering may unduly constrain attorneys in the proper rep-resentation of their clients.2' While being careful not to suggest thatthe United States' legal system is the equivalent of the German systemunder the Nazi regime, Dean Vairo does refer to the German experi-ence and focuses on the loss of the independence of lawyers as a con-tributing factor.' In sum, while Dean Vairo views the 1993amendments as a positive step, she still fears that the threat of hugefee awards as sanctions will threaten vigorous advocacy.My own view of the developments reflected in the 1993 amend-ments stakes out a position that can best be described as "in between"the ideas expressed by Judge Schwarzer and Dean Vairo. While I donot fear that Rule 11 will destroy the independence of the practicingbar and lead to anything remotely resembling a fascist regime in theUnited States, there may still be significant problems associated withthe new Rule.To be sure, the 1993 amendments do reflect much needed im-provement. The decision to make sanctions for Rule 11 violations dis-cretionary rather than mandatory was a bold move that could reducethe chilling and fee-shifting effects associated with the 1983 version.The apparent rejection of a continuing duty approach is also a positivedevelopment, and the attempt to place greater emphasis on deter-rence rather than fee shifting is laudable. It is also significant that theCommittee Notes now emphasize that legal theories predicated uponminority opinions or views expressed in law review articles may beprotected from assertions of frivolousnessPNevertheless, several potential problems loom on the horizon.The potential expansion of liability for represented parties may in-crease attorney-client friction and create conflict of interest problems.The retention of attorneys' fees as an option for trial judges could still18. Id. at 67, 78.19. Schwarzer, supra note 2, at 23.20. Vairo, supra note 2, at 42-50.21. Id. at 44.22. Id. at 43-46.23. 1993 advisory committee's notes, supra note 10, at 587.[Vol. 28:1November 1994]result in fee shifting under the guise of deterrence. Most importantly,the retention of an abuse of discretion standard for appellate reviewmay permit district judges too much leeway in deciding whether a vio-lation has occurred and the nature of a sufficient sanction. Any deter-mination regarding the validity of these concerns must await thedevelopment of a body of new Rule 11 jurisprudence.24 Hopefully,federal courts will seek to implement the new Rule in a manner thataccurately reflects the intent of the drafters to permit imaginative andvigorous advocacy.24. In one recent appellate decision, the First Circuit recognized the potential impactof the new Rule 11. In Silva v. Witschen, 19 F.3d 725 (1st Cir. 1994), the court of appealsapplied the 1983 version of the Rule but noted in dicta that the 1993 amendments weredesigned to make sanctions discretionary rather than mandatory and to emphasize deter-rence rather than compensation or punishment. Id. at 729 n.5. If other courts take propercognizance of these important changes, perhaps the 1993 version of the Rule will eliminatethe most egregious problems associated with its predecessor.FOREWORD6 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 28:1

Foreword—Third Annual Fritz B. Burns Lecture on Rule 11 Reform: Progress or Retreat on Attorney Sanctions

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