2.4 Sanctionable Versus Nonsanctionable

• Library: Attorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

2.4 SANCTIONABLE VERSUS NONSANCTIONABLE

2.401 In General. The court must distinguish between the sanctionable part of a pleading and the nonsanctionable part of a pleading. It is an abuse of discretion not to distinguish between sanctionable and nonsanctionable conduct in fixing the amount of a fee sanction award. ⁶⁸ Where there

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are multiple aspects of a party's pleadings, some of which are sanctionable and others of which are not, the portion of the sanctions awarded in respect to the nonsanctionable filings cannot stand. ⁶⁹

2.402 Appropriate Sanctions—Considerations. Because the dual goals of sanctions are punishment and deterrence, sanctions under Section 8.01-271.1 are not limited to the expenses incurred as a result of the motion and may exceed the amount necessary to reimburse the actual costs as long as the sanctions are reasonable. ⁷⁰

The sanctions that a court imposes for a violation of Section 8.01-271.1 of the Virginia Code must be tailored to the specific case before the court. ⁷¹ What is reasonable must be "considered in relation with the [statute's] goal of deterrence, punishment and compensation." ⁷² With regard to an award of fees as a sanction, the trial court may only award fees incurred because of a filing or motion made in the trial court in the matter pending before the court and may not award fees incurred for filings or motions made in other matters or other courts. ⁷³

A court may, in the exercise of its discretion, impose separate additional sanctions that share with punitive damages awards "the common purpose of punishment and deterrence." ⁷⁴ "Punitive sanctions may be imposed under [section] 8.01-271.1 without proof of the elements necessary to support an award of punitive damages." ⁷⁵ The attorney's and the client's mendacity on the witness stand is a factor in assessing punitive sanctions. ⁷⁶

A court might conclude that any of a plaintiff's claims, while standing alone, were merely a mistake or an oversight by counsel and might warrant only a mild sanction, a combination of many frivolous claims supported by wild speculation virulently prosecuted, even after any legitimate prospect of success has vanished, supports a finding that the claims were not an over-sight

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or mistake and, instead, that they were filed out of a vindictive and malevolent desire to injure and intimidate a business competitor. ⁷⁷

A party's nonresponsiveness to counsel's questions both at her deposition and when she took the witness stand throughout the litigation, when added to the party's nonresponsive and irrelevant diatribes, were "indicative that party filed lawsuit out of a vindictive and malevolent desire to injure." ⁷⁸

2.403 Available Sanctions. Available sanctions are limited to

1.	Reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including attorney fees; 79
2.	Fines payable to court; 80
3.	Suspension of privilege to practice before a particular court; 81
4.	Revocation of pro hac vice admission; 82
5.	Actual expenses of transcripts and per diem reporter charges. 83 All actual charges incurred by defendants including mileage and parking, photocopying, printing, mailing, shipping, fax, and telephone charges in connection with any hearing, motion, or conference; 84

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6.	All service of process charges and other taxable costs; 85
7.	Payments to the clerk of court for reporters and tran-scripts; 86
8.	Payment of punitive sanctions paid to the Attorney General to reimburse citizens of Virginia for legal services that had to be rendered by the Attorney General and, if not permitted, then a sum paid to the clerk of court; 87
9.	Counsel completing continuing education in ethics that may not be applied to required CLE credits; 88
10.	Client to take ethical course; 89 and
11.	Requiring leave of court before filing additional plead-ings. 90

2.404 Pending Motion for Sanctions May Still Be Ruled upon After Entry of Nonsuit. A motion for a sanction under Section 8.01-271.1 is an application made to a court for the imposition of a penalty for alleged misconduct of a party or lawyer for alleged abuse of the system, and it has no bearing on the facts giving rise to a right to seek judicial remedy, and thus, the entry of a nonsuit order does not conclude a case as to any pending motion for sanctions. ⁹¹

A motion for sanctions filed within 21 days of nonsuit and court order within the 21-day period retaining jurisdiction to rule on motion may, thereby, be ruled on after the 21-day period. ⁹²

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A trial court is well within its authority under Rule 1:1 to suspend a nonsuit order within 21 days of its entry, and by doing so it properly retains jurisdiction to consider and impose sanctions. ⁹³

2.405 Sanctions Warranted. When an attorney interposed a petition for a rehearing before the Supreme Court with intemperate language to express his displeasure with the Supreme Court's decision, the court was compelled to conclude that the petition for rehearing was interposed for an improper purpose, which was to ridicule and deride the court using intemperate language. ⁹⁴

When an attorney asserted affirmative defenses that were not "well grounded in fact," sanctions were appropriate. ⁹⁵ In Williams & Connolly, LLP v. PETA, ⁹⁶ counsel's motion to recuse a judge was not grounded in fact or warranted by law and was filed for an improper purpose.

At the time of filing of an answer to counterclaim, counsel could not have reasonably believed that a legal malpractice case could be assigned based on common law and a recent Supreme Court case, which was cited by an opposing litigant. ⁹⁷

In Lester v. Allied Concrete Co., ⁹⁸ Plaintiff's counsel violated Section 8.01-271.1 of the Virginia Code by maintaining and certifying the accusation that defense counsel "hacked into" his client's Facebook account during a hearing in open court and in the response to request for production of documents, based on no inquiry into the relevant facts beyond the bare, unsubstantiated assertions of his client.

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An attorney's lack of any facts to support his client's mere suspicion of adultery (without any particulars) when the complaint was filed warrants sanctions against the attorney. ⁹⁹ An attorney and his client lacked personal knowledge of any facts to support a conspiracy claim and propounded a due process claim that had been rejected numerous times before in order to delay foreclosure, which was found to have been filed for the improper purpose of harassing and delaying the proceedings. ¹⁰⁰

An attorney and his client sanctioned for a spite suit when the attorney did not make a reasonable inquiry where he filed suit two months after the Virginia Supreme Court had issued an opinion dispositive of the plaintiff's claims, the client spent a year trying to find an attorney willing to take the case, and the court determined that punitive sanctions were warranted due to both the attorney's and the client's mendacity on the witness stand. ¹⁰¹

The court held that sanctions to be paid to a bank's attorney for fees and costs was appropriate under Section 8.01-271.1 where a party and his counsel knowingly instituted a lawsuit to recover funds from the bank that they knew the client had already recovered pursuant their instructions to the bank and therefore had acted for an improper purpose and filed a lawsuit not well grounded in fact. ¹⁰²

Counsel violated Section 8.01-271.1 by participating in spoliation of evidence by (i) omitting relevant email from a privilege log submitted to the court, (ii) failing to submit the email for an in camera inspection, and (iii) falsely representing to the court that a mistake of a paralegal and not his own misconduct caused the omission. ¹⁰³

A sanction award of $2,000 was affirmed against an attorney who "raised the same argument (involving the same facts, parties, and legal issues) previously rejected on the merits and left undisturbed on appeal. . . ." ¹⁰⁴

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A party was sanctioned $1,000 where a litigant disregarded the advice of counsel and insisted on opposing a motion for a continuance without a reasonable basis and for improper purposes. ¹⁰⁵ However, it is "patently incorrect and completely without basis" under Section 8.01-271.1 to impose sanctions...