Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

What the Rules Against Filing Frivolous Pleading and Papers Are—And Are Not

Litigation defendants often threaten plaintiffs with sanctions in response to lawsuits filed against them, alleging in letters that the litigation is frivolous and was brought without a reasonable pre-filing investigation.  Most of the threats are paper tigers—angry letters never followed by a motion.  But sometimes motions are filed and, most often, denied.  When deciding whether to threaten or seek sanctions, attorneys should remember that the procedural and ethics rules against filing frivolous cases, pleadings and papers are not designed as attack mechanisms for an average weak case or incomplete discovery response.

Federal Rule of Civil Procedure 11 is the federal rule that prohibits frivolous and unwarranted contentions in litigation and allows courts to sanction attorneys for violations.  California’s version appears in California Code of Civil Procedure §128.7, and California courts look at Rule 11 cases when they interpret §128.7.  Both rules require that an attorney sign every pleading, written motion or other paper in a case.  With that signature, an attorney certifies that “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that the document: (1) is not being presented for any improper purpose; (2) the claims, defenses and legal contentions are not frivolous; (3) the factual contentions have evidentiary support or will after discovery; and (4) denials of factual contentions are warranted on the evidence.  Fed. R. Civ. P. 11.

From a legal ethics perspective, both rules are backed up by California Rule of Professional Conduct 3-200 and ABA Model Rule 3.1, which set forth the minimum requirement that a lawyer needs a non-frivolous basis for taking a legal position on behalf of any client and cannot bring litigation for the purpose of harassing or maliciously injuring any person.

In other words, these rules set floors for acceptable attorney conduct, and violations are reserved for truly meritless or frivolous cases and contentions.  Attacks on pleadings in weak cases (rather than nonexistent cases) are better served with motions to dismiss or for summary judgment.  Indeed, case law in several states prohibits sanctions where motions to dismiss or for summary judgment are denied.1

Of course, Rule 11 is not dead.  In the famous 2007 case involving discovery misconduct allegations against Qualcomm Inc. in the Southern District of California, U.S. Magistrate Judge Barbara L. Major issued an order to show cause why, for “any and all other attorneys who signed discovery responses, signed pleadings and pre-trial motions, and/or appeared at trial on behalf of Qualcomm” should not be sanctioned.2

About three weeks ago, the U.S. Court of Appeals for the Ninth Circuit reversed and vacated Rule 11 sanctions granted against the Federal Bureau of Investigation by the U.S. District Court for the Central District of California.3  Notably, the FBI avoided attorneys’ fees sanctions because the motion for sanctions was “untimely.”  “Shura Council moved for sanctions long after the district court had ruled on the adequacy of the government’s eventual compliance with FOIA, and a fortiori after it had ruled the FBI’s original response had been inadequate and misleading.”4 The Ninth Circuit held that the sanctions motion made after “judicial rejection of the offending contention” should not have been granted, citing as authority the Advisory Committee’s Notes to the 1993 Amendments to Rule 11.5

Thus, attorneys are wise to learn their obligations not to advance frivolous cases or contentions under Rules 11 and §128.7, and their similar ethics obligations under CRPC 3-200 and ABA Model Rule 3.1.  And when it comes to advising clients whether to threaten sanctions for an alleged violation, attorneys would be wise to learn when Rules 11 and §128.7 are—and are not—an appropriate procedural vehicle for advancing their clients’ causes.

-- Erin P. Gibson - Partner, Intellectual Property and Technology, DLA Piper LLP (US)

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**

1 Jeffrey W. Stempel, Sanctions, Symmetry, and Safe Harbors: Limiting Misapplication of Rule 11 by Harmonizing It with Pre-Verdict Dismissal Devices, 60 Fordham L. Rev. 257, at 274-276 (1991) (discussing cases), available at:

2 Case No. 3:05-cv-01958-B-BL (Docket No. 599, filed 08/13/2007).

3 Islamic Shura Council of Southern California v. F.B.I., --- F.3d ----, 2013 WL 3992123 (C.D. Cal. July 31, 2013).

4 Id., at *2.

5 Id.