August  2003 (back to publications main page)

RULE 11: Policing Ourselves
 

You may not admit it, you may not even know it, but attorneys are human, and humans make mistakes and exercise bad judgment.
 

NRCP 11 is a guideline to help attorneys avoid those situations. It guides us not just in signing court filings, but in our investigation of a client's claims, in our belief that a law should be changed, and in our control of a client's desire to hurt his opponent in a lawsuit. And it slaps us with sanctions when we step over the line.

Signing court filings:
"Every pleading, motion or other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. The signature of an attorney or party constitutes a certificate by that attorney or party that he or she has read the pleading, motion, or other paper…"
 

Note that the signature must be an individual name. While Rule 11 allows sanctions to be imposed against the law firm as well as the signing attorney, for filings determined to be improper, the responsibility for the filing falls squarely on the signing attorney.
 

According to one of the Assistant Bar Counsels at the State Bar of Nevada, a frequent offense is simply an attorney's failure to read what he signs. If a paralegal or assistant is instructed to draft a document and the attorney signs the final product without reading it, word for word, he is placing his reputation squarely in the hands of that employee. In a technological world of cut-and-paste word processing, drafting errors are easy to make, but a quick final read before signing will find, and fix, most of them.
 

If an attorney is asked to sign a filing he did not draft, e.g., to meet a deadline in the unexpected absence of the drafting attorney, the signing attorney gets the full responsibility for the document under Rule 11. If an attorney signs such a filing without reading it, the responsibility assumes a greater significance. We all know that signing a document without reading it is not a defense against the consequences of its contents. We would argue with a client who signed anything without reading it. We must heed our own words.

Investigating a Client's Claim:
"[T]hat to the best of his or her knowledge, information and belief, formed after reasonable inquiry under the circumstances obtaining at the time of signature, that it is well grounded in fact…" NRCP 11.
 

An attorney's claim will survive a dismissal as "frivolous" if it meets the two-prong test established in Bergman v. Boyce, 109 Nev. 670, 856 P.2d 560 (1993). A claim is not frivolous if (1) 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 (2) the attorney made "a reasonable and competent inquiry." Id. The first prong requires a clear understanding of the actual circumstances (the facts) of the claim, and the existing law relating to it. The second prong sets the standard for an attorney's review of a client's claim. "Reasonable and competent" means listening carefully to the client, reviewing and analyzing necessary documents, sometimes reading between the lines, perhaps visiting the scene, and always paying close attention to your instincts. Clients are sometimes dreamers. Attorneys must be skeptics.
 

On a positive note, the "reasonable inquiry" is not a continuing obligation on the attorney, requiring rethinking and amending of filings. The inquiry required concerns only the "circumstances obtaining at the time of signature."

Belief that a law should be changed:
"[A]nd is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law…"
 

The existing law is easy to find, and new laws are constantly being written. Old or cumbersome laws are modified or "taken off the books." And yet many old laws are not modified or removed, although they should be. Sometimes laws are modified and the end result is simply unworkable. Rule 11 sanctions should not be used as a freeze-ray to "chill an attorney's enthusiasm or creativity in reasonably pursuing factual or legal theories." Marshal v. Eighth Judicial District Court, 836 P.2d 47 (1992). Of course, the important word is "reasonably." One person's "reasonable" is another person's "outrageous."
 

A large body of law has come about because of an attorney's good faith belief in a need for change in the law, and his persistent, and eventually successful, efforts in pursuit of that change.

No improper purpose allowed:
"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."

Every client has not one, but many, agendas in his or her desire to sue someone or his or her response to being sued. It is our job to foster and represent the agendas that the justice system is intended to address and to ignore the others. We cannot be therapist, religious adviser or Mom, and we must not be motivated solely by a client's desire (or our desire) to "destroy" the opposition (or opposing counsel), either financially or literally. The courtroom, and the greater atmosphere of filings, conferences and events that surround it, should be utilized as the center of justice, not a kids' playground or the center ring of a knockdown, drag-out fight.
 

As for delay, the wheels of justice already grind slowly. For some attorneys and many clients, the slower the better. But for the attorneys and clients on the other side of that litigation coin, speed is not only desired, it is essential. There is a tempo to the justice system that grates on the nerves of everyone involved when it is "off." Unnecessary delay is not allowed.

FRCP 11 v. NRCP 11:
According to a current sitting Nevada Supreme Court justice, a proposal has been made to conform NRCP 11 to the equivalent Federal rule. FRCP 11 is more detailed and specific than the Nevada rule, but its most significant difference is a "safe harbor" provision.
 

An attorney alleging a violation under FRCP 11 must serve a motion on the allegedly offending attorney or party, who then has twenty-one days to either withdraw or correct the document believed to be in violation of the Rule. Only after the attorney or party fails or refuses to withdraw or correct its document can the motion be filed with the court for a ruling. FRCP (C)(1)(A). Such a provision in the Nevada rules could save substantial judicial time and legal fees.
 

Even without such a safe harbor provision in NRCP 11, Nevada attorneys could choose to communicate to the opposing side their intention to move for sanctions before actually filing in an effort to resolve a potential conflict, which would also save judicial time. Yet some believe that attorneys frequently use the threat of Rule 11 sanctions as a hammer against the other side.

Judicial Reluctance to Award Rule 11 Sanctions
The notes of the Advisory Committee on the 1993 amendments to the Federal Rules of Civil Procedure state that the purpose of Rule 11 is "to deter rather than to compensate." If that is the intent of NRCP 11 as well, its purpose seemingly is being thwarted by what is viewed by many as a judicial atmosphere of unwillingness to award sanctions, fostered by an historic unwillingness by the Supreme Court to uphold sanctions.
 

When questioned, several Eighth Judicial District Court judges expressed reluctance to award sanctions against attorneys or parties for other than blatant violations of the Rule, pointing to the state Supreme Court's past record of overturning the vast majority (one Judge's estimate was ninety percent) of sanctions brought before it.
 

One justice believes, however, that the present Supreme Court is less likely to overturn appropriate sanctions, and in fact has been at least occasionally imposing sanctions on its own.
 

If sanctions are granted and then appealed, the standard of review is an abuse of discretion by the trial court. If the lower court judges experience more support from the Supreme Court for their Rule 11 rulings, perhaps sanctions will be granted when appropriate, and Rule 11 will begin to have the desired deterrent effect.
 

Role of the State Bar
Even if a judge decides that an attorney should not be sanctioned, there is always the opportunity to file a complaint against the alleged offender with the State Bar. According to an Assistant Bar Counsel, the most frequent complaints against attorneys are for failure to communicate and failure to supervise employees.
 

The failure to communicate does not refer merely to communication with clients. A recent State Bar complaint involved two attorneys in the same firm working on the same case (but apparently not communicating). These two attorneys filed inconsistent pleadings and were sanctioned. As always, the right hand needs to know what the left hand is doing.
 

For the same reason that inmates should not run the asylum, paralegals should not run the firm. The qualifications of law firm employees range from great to virtually none. Only the supervising attorney can decide how file-worthy his employees' work product is, and the responsibility for that work product still starts and stops with the attorney and rests solely on his signature.
 

The Bar has always prided itself on policing itself and has resisted opinions and restrictions proffered or imposed by non-attorneys. Rule 11 is a major guideline for that self-policing. If we do not police our own actions and conduct ourselves according to Rule 11 and with all due professionalism, someone will step up to regulate us.
As correspondence from attorneys frequently advises, guide your actions accordingly. NL

Kathleen S. Niggemyer is licensed in Nevada and California and practices primarily in the areas of real estate and family law. She currently serves on the Boards of Directors of the Nevada Disability Advocacy and Law Center and the Southern Nevada Association of Women Attorneys, and is actively involved in the Children's Attorney Project of the Clark County Legal Services Program.