§8.3 Civil Rule 11 and Related Court Procedural Rules

• Jurisdiction: Washington

III. CIVIL RULE 11 AND RELATED COURT PROCEDURAL RULES

Apart from the ethics code, of course, a variety of court procedural rules are designed to maintain professional behavior by lawyers. Civil Rules (CR) 11, 26, and 37 are the best known of these and will take up the bulk of this section. But it should be remembered that there are analogous rules of criminal and appellate procedure. Washington Criminal Procedure Rule 4.7 (CrR 4.7), for example, lays down discovery obligations for prosecutors and defense attorneys and empowers the court to impose sanctions for "willful violations" of those rules or orders issued under them.⁴⁴³ Rule 18.9 of the Washington Rules of Appellate Procedure (RAP 18.9) is more specific still, providing that the court may order any party or lawyer "who uses these rules for the purpose of delay, files a frivolous appeal, or fails to comply with these rules to pay terms or compensatory damages to any other party who has been harmed by the delay or the failure to comply or to pay sanctions to the court."⁴⁴⁴ There is also statutory authority in Washington entitling a court to award reasonable expenses, including attorney fees, to prevailing parties for frivolous claims or defenses advanced "without reasonable cause" by the opponent.⁴⁴⁵

There are similar rules in the federal courts. In addition to FED. R. CIV. P. 11 and 26, 28 U.S.C. §1927 provides:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.⁴⁴⁶

The Federal Rules of Appellate Procedure authorize courts to "award just damages and single or double costs to the appellee" for frivolous appeals.⁴⁴⁷ Appellate courts are also authorized by federal statute to award "just damages for ... delay, and single or double costs" to prevailing parties.⁴⁴⁸ Finally, both at the state and federal level, courts have inherent power to sanction lawyers before them who are thought to be acting in bad faith.⁴ 449

But without question, the most potent of court procedural rules—state and federal—that have been developed to regulate professional behavior by lawyers are Civil Rules 11, 26, and 37. A complete analysis of these rules and the decisions under them is beyond the scope of this book.⁴⁵⁰ Fortunately, thorough analyses have been done by others.⁴⁵¹ Nonetheless, some general observations about the reach of these rules are necessary here to show their relationship with the ethics code and their place in the Washington law of lawyering.

First, the Washington and federal versions of Rules 11 and 26 have diverged since 1993. Washington adopted the 1983 federal version of Rule 11 in 1985. The purpose of the 1983/85 amendments at both the federal and state levels was to "discourage dilatory or abusive tactics and help streamline the litigation process by lessening frivolous claims and defenses."⁴⁵² The rule required that attorneys sign every pleading, motion, or legal memorandum and provided that the signature would constitute a certificate by the lawyer

that to the best of [the attorney's] knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

A similar certificate was required for discovery documents under federal and Washington Rule 26(g).⁴⁵³ If a court found that a signature had been made in violation of either rule, then the imposition of sanctions was mandatory.

In 1993, the federal rules were substantially amended. The most important changes to FED. R. CIV. P. 11 included:

(1)	Sanctions under the rule were made discretionary.454
(2)	A "safe harbor" period was added to the rule barring a party from moving for sanctions until it had first served the allegedly offending party with the motion for sanctions and given that party 21 days to withdraw or amend the offending paper.455
(3)	The requirement that arguments for change in existing law be made in "good faith" was replaced by a requirement that they be "nonfrivolous."456
(4)	Instead of being a certificate that the pleading is "well grounded in fact," the signature became a representation that allegations and other factual contentions "have evidentiary support or, if specifically so identified are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery,"457 and that "denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information."458
(5)	A continuing duty exists not to later advocate to a court a position if it should become apparent after it is filed that it lacks legal or factual support.459
(6)	Law firms as well as individual lawyers may be sanctioned.460 Emphasis is shifted away from monetary sanctions awarded to movants by suggesting nonmonetary sanctions and monetary sanctions paid into court funds.461

Despite considerable controversy over the form of CR 11 here, the Washington Supreme Court made only one of the changes contained in the 1993 version of Fed. R. Civ. P. 11: sanctions under CR 11 were made discretionary in 1993.⁴⁶² But in all other material respects, CR 11(a) remains the same as it was when adopted in 1985.⁴⁶³ The court has, however, moved towards a number of the federal changes by judicial decision. Thus in Bryant v. Joseph Tree,⁴⁶⁴ the court held that "[a] court should ... be reluctant to impose sanctions for factual errors or deficiencies in a complaint before there has been an opportunity for discovery."⁴⁶⁵ Washington lawyers are normally expected to give their opponent notice before filing a motion for CR 11 sanctions.⁴⁶⁶ Finally, to avoid spawning a "cottage industry" by movants seeking to supplement damages, courts are encouraged to consider ordering that monetary sanctions be paid into a court fund.⁴⁶⁷

Second, as may be seen from a comparison of the text of CR 11, 26, and 37 and the Rules of Professional Conduct previously discussed in this chapter, these procedural sanction rules attempt to control conduct that may also violate RPC 3.1 (frivolous claims), 3.2 (expediting litigation), 3.4 (fairness to opposing party), and RPC 4.4 (respect for rights of third persons). In addition, a "knowing" violation of any of these procedural rules, because they are "rules of a tribunal," exposes a lawyer to disciplinary action under RPC 3.4(c) unless it is an "open refusal based on an assertion that no valid obligation exists."⁴⁶⁸

As a practical matter, the disciplinary authorities may rely on the court's sanctioning power in all but the most egregious cases rather than firing up a disciplinary proceeding. Nonetheless, the violation is there, in principle, and may reinforce other disciplinary action that is commenced based on other infractions. There is no statute of limitations for disciplinary actions, so even an old procedural violation could come back to haunt a lawyer. Nor is there any requirement that disciplinary authorities show that a court has found a violation for RPC 3.4(c) to be violated.

Third, there are significant differences between Rule 11 and Rules 26 and 37. When Fed. R. Civ. P. 11 was amended in 1993, no comparable changes were made to Fed. R. CIV. P. 26. The only substantive change made to Rule 26 was to cut back sanctions for violations of that rule unless they were committed "without substantial justification."⁴⁶⁹...