| Chapter 4: II. Sanctions Federal Rule of Civil Procedure 11 authorizes federal courts to issue sanctions against parties or their attorneys who file pleadings, motions, or other papers that lack a required level of evidentiary or legal support. II.A. Federal Rule of Civil Procedure 11 The aim of Rule 11 is to
Rule 11, as amended in 1993, requires litigants to sign “every pleading, written motion, and other paper.” /25/ That is, litigants must sign every document filed with the court. /26/ The signer’s address and telephone number must be included, and local rules of court may require additional identifying information to accompany the signature, such as facsimile numbers./27/ In Business Guides Inc. v. Chromatic Communications Enterprises, the Supreme Court noted that “[t]he essence of Rule 11 is that signing is no longer a meaningless act; it denotes merit. A signature sends a message to the district court that this document is to be taken seriously.” /28/ A typed name is not a signature. /29/ But courts may by local rule establish electronic filing policies consistent with technical standards adopted by the Judicial Conference of the United States. /30/ Rule 11(b) provides that,”[b]y presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances” that the material presented conforms to Rule 11 standards. /31/ The “later advocating” requirement was added to Rule 11(b) in 1993 to emphasize that Rule 11 obligations continue throughout the litigation process. /32/ This amendment “subjects litigants to potential sanctions for insisting upon a position after it is no longer tenable.” /33/ Although a litigant must discontinue advocating a position that she later learns is invalid, Rule 11 does not require a formal amendment of the initial pleading. /34/ Nor does Rule 11 cover contentions made before the court at oral argument regarding matters not previously raised because attorneys may lack time to research their validity. /35/ However, oral statements that advocate baseless assertions made in writing are sanctionable. /36/ Rule 11(b) enumerates four standards to which litigants must adhere when presenting materials to the court. First, Rule 11(b)(1) requires that materials not be presented for an improper purpose. Prohibited improper purposes include harassment, “unnecessary delay and needless increase in the cost of litigation.” /37/ Improper purpose is generally reviewed objectively, based upon a totality of the circumstances, given the difficulty in discerning subjective intent. Yet, there is some disagreement among the courts on three important questions: (1) whether subjective intent should be considered as a factor in this analysis, /38/ (2) how to evaluate cases involving mixed motives, /39/ and (3) whether a nonfrivolous complaint may nevertheless be subject to sanction as being filed for an improper purpose. /40/ Second, Rule 11(b)(2) states that any claims, defenses, or legal contentions presented to the court must be either grounded in existing law or asserted to extend, modify, or reverse existing law or, as of 1993, establish new law. /41/ Of significance to legal aid attorneys, several decisions illustrate that plausible arguments to extend, modify, or reverse existing law are not subject to Rule 11 sanctions. /42/ Nonetheless, legal services attorneys should document the legal research performed and consultations with other attorneys made before filing because these efforts are subject to scrutiny should a Rule 11 motion be filed. /43/ Third, Rule 11(b)(3) requires that any factual allegation either have evidentiary support or, if identified as such, be “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” /44/ Rule 11(b)(3) may offer some latitude in cases common to legal services practice. When a client or other witness gives the attorney a good-faith basis for believing certain facts as true, the defendant has control over evidence of such facts, and circumstances require prompt filing; an attorney may file a complaint without specific evidentiary support, but only if allegations without such support are specifically identified. /45/ Fourth, Rule 11(b)(4) states that any denials of factual contentions must be either “warranted on the evidence” or, if identified as such, “reasonably based on a lack of information or belief.” /46/ The addition of this fourth requirement to the 1993 amended rule ensures an equal application to both plaintiffs and defendants. The standard for evaluating Rule 11 violations is an objective one of reasonableness under the circumstances./47/ A court need not find bad faith to issue sanctions./48/ With respect to legal assertions, the objective standard is met when the legal assertion is (1) objectively baseless and (2) the attorney has not made a “reasonable and competent inquiry” before making it./49/ In Divane v. Krull Electric Co. the court identified the circumstances which governwhether factual assertions are objectively reasonable: /50/
Rule 11(c) permits, but since 1993 no longer requires, the court to issue sanctions to attorneys, law firms, or parties in violation of the rule or responsible for the violation. /52/ The 1993 amendments made the issuance of sanctions, whether prompted by motion or by the court’s own initiative, discretionary rather than mandatory./53/ The advisory committee’s notes list several factors that the courts should consider in deciding whether to issue a sanction and, if appropriate, the kind of sanction to impose:
The 1993 amendments also stress that the purpose of sanctions is deterrence rather than compensation and highlight the availability of non-monetary sanctions available to the court./55/ Consistent with this deterrence function, “if a monetary sanction is imposed, it should ordinarily be paid into court as a penalty.” /56/ These amendments lessen the incentive for a litigant to file a motion for sanctions because the litigant is less likely to profit financially if a Rule 11 violation is found by the court. Rule 11, however, also authorizes the direct payment of fees and expenses to the moving party when “warranted for effective deterrence.” /57/ At bottom, “sanctions should not be more severe than reasonably necessary to deter repetition of the conduct by the offending person or comparable conduct by similarly situated persons.” /58/ Rule 11 authorizes the court to sanction both attorneys and their clients./59/ Rule 11(c)(1)(A) further provides that, “[a]bsent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.” /60/ Although this provision has apparently not been applied to a legal services organization, it does suggest that such an entity could be regarded as a law firm and, therefore, subject to sanctions when an attorney it employs violates Rule 11. The advisory committee’s notes state that the court may appropriately inquire whether “institutional parties” impose restrictions on the discretion of individual attorneys. /61/ To the extent that such restrictions minimize the risk of institutional sanctions, legal aid organizations may wish to consider imposing such restrictions. Rule 11(c)(1)(A) requires that a party seeking sanctions must serve a separate motion on the alleged offender twenty-one days before filing the motion in court./62/ During this twenty-one-day period, the party served may withdraw or correct any challenged material, thus eliminating the need for the motion to be filed with the court. This “safe harbor” period aims to decrease the volume of Rule 11 motions that come before the court. Litigants may avoid potential sanctions by withdrawing or amending improper materials without the court’s involvement. The court in Barber v. Miller discussed the rationale for the safe-harbor provision as follows: /63/
A court may also levy sanctions sua sponte but may do so only after issuing a specific order describing the perceived misconduct and allowing the possible offender an opportunity to show cause why the sanction should not be issued./65/ The rule incorporates a measure of due process protection./66/ Furthermore, to facilitate appellate review, the rule requires the court to describe the sanctionable conduct and the basis for the sanction imposed. /67/ While the matter may turn on particular facts, generally, Rule 11 sanctions are not immediately appealable under the collateral order doctrine./68/ On appeal,”[a]ll aspects of a district court’s Rule 11 determination are examined under the abuse of discretion standard.” /69/ Rule 11 is not the sole authority for the issuance of sanctions. Sanctions for discovery abuse are governed by Rules 26 and 37. II.B. Ghostwriting Ghostwriting occurs when attorneys draft pleadings or court documents for clients who represent themselves in court pro se./70/ Ghostwriting has been defended as a means to keep pro se litigants with meritorious cases from defaulting./71/ Courts /72/ and most bar ethics committees,/73/ however, criticize the practice, particularly when undisclosed, as taking advantage of the lenient standards afforded to pro se litigants./74/ Before engaging in ghostwriting, it is strongly recommended that you review any ethics opinions involving this practice in your jurisdiction or seek such an opinion if there is not one on point. Even though most federal courts addressing ghostwriting concluded that it violates Rule 11, the same courts declined to sanction the anonymous authors. The courts cited insufficient evidence, /75/ or a lack of clearly defined precedent./76/ Although nascent in development, the authority to sanction ghostwriting includes:
Courts have specifically interpreted the purpose of Rule 11(a) as requiring attorneys to sign court documents that they prepared “in any substantial part.” /81/ However, one court acknowledged that if a ghostwriter no longer represented a litigant when the complaint is filed, the author’s failure to sign a complaint “is not at odds with the plain language of Rule 11.” /82/ Advocates should be especially wary in jurisdictions that have already addressed ghostwriting since some courts served notice that it might be sanctionable. /83/ At least one court offered a preventive approach for attorneys caught between protecting a pro se litigant from default and not being bound to represent the litigant throughout the entire case./84/ The suggested remedy is simply to sign and file the pleading and “simultaneously fil[e] a motion to withdraw as counsel accompanied by an appropriate explanation and brief.” /85/ However, this theoretical escape hatch poses unique problems for legal aid attorneys, who often provide limited service arrangements to clients. In such cases withdrawal may run afoul of the duty not to withdraw if it would cause a “material adverse effect on the interests of the client.” /86/ II.C. 28 U.S.C. § 1927 Another basis for sanctions lies in 28 U.S.C.§ 1927, which serves “to deter unnecessary delays in litigation.” /87/ The statute authorizes sanctions in the form of “excess costs, expenses, and attorneys fees” against any attorney who “multiplies the proceedings in any case unreasonably and vexatiously.” /88/ Courts have resorted to Section 1927 more frequently since the statute was amended to include attorneys’ fees. /89/ The scope of authority to sanction under Section 1927 is both broader and narrower than Rule 11./90/ Section 1927 is broader in that the attorney’s behavior is examined throughout the entire litigation, as a “course of conduct,” /91/ while Rule 11, as noted above, applies to particular filings. /92/ As a result, a course of conduct can be sanctionable even though the filings during that conduct comport with Rule 11 standards. Section 1927 is narrower because Rule 11 misconduct is based on the party’s or attorney’s objective knowledge, while, in many circuits, Section 1927 requires subjective bad faith./93/ Some jurisdictions, however, interpret Section 1927 as authorizing sanctions when attorney conduct, “viewed objectively, manifests either intentional or reckless disregard of the attorney’s duties to the court.” /94/ Since Rule 11 and Section 1927 have different standards, courts deciding whether to issue sanctions under both may conduct a separate inquiry into Section 1927 and Rule 11, but a court proceeding sua sponte under either rule must give the subject attorney notice and an opportunity to respond. /95/ Their “resulting findings must appear with reasonable specificity in terms of the perceived misconduct and the sanctioning authority.” /96/ For example, since Section 1927 sanctions are limited to costs associated with excess litigation, “blanket awards of all fees” may not withstand appellate scrutiny. /97/ 23.. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 397 (1990). 24..Fed. R. Civ. P. 1; Fed. R. Civ. P. 11 advisory committee’s notes (1993). 25. “Other papers” is broadly interpreted. See, e.g., Becker v. Montgomery, 532 U.S. 757, 763 (2001) (notice of appeal); Apolistic Pentecostal Church v. Colbert, 169 F.3d 409, 417 (6th Cir. 1999) (garnishee disclosure). 27. Fed. R. Civ. P. 11 advisory committee’s notes (1993). 28. Bus. Guides Inc. v. Chromatic Commc’ns Enters., 498 U.S. 533, 546 (1991). 29. Becker v. Montgomery, 532 U.S. 757, 763 (2001). Should a filing be made without a handwritten signature, the clerk’s office should return it and a substitute promptly filed. See Fed. R. Civ. P. 11(a). 30.Fed. R. Civ. P. 5(e); see also Fed. R. Civ. P. 5 advisory committee’s notes (1996) (“An electronic filing that complies with the local rule satisfies all requirements for filing on paper, signature, or verification.”). 32. See, e.g., Buster v. Greisen, 104 F.3d 1186,1190 n. 4 (9th Cir. 1997) (holding that district court could impose sanctions on plaintiff for continuing to argue frivolous contentions asserted in complaint even when action was filed in state court and removed). 33. Fed. R. Civ. P. 11 advisory committee’s notes (1993). At the same time, a voluntary dismissal of a complaint does not divest the trial court of jurisdiction to issue Rule 11 sanctions. Cooter & Gell, 496 U.S. at 395. 34. Fed. R. Civ. P. 11 advisory committee’s notes (1993) (“Subdivision (b) does not require a formal amendment to pleadings for which evidentiary support is not obtained, but rather calls upon a litigant not thereafter to advocate such claims or defenses.”). 36. Phonometrics, Inc. v. Econ. Inns of Am., 349 F.3d 1356, 1361 (Fed. Cir. 2003), cert. denied, 541 U.S. 1010 (2004). 37. Fed. R. Civ. P. 11(b)(1). This list is not exclusive. Actions intended to embarrass an opposing party may, for example, be sanctionable under Fed. R. Civ. P. 11(b)(1). See Whitehead v. Food Max of Miss., 332 F.3d 796, 807 (5th Cir.) (en banc), cert. denied, 540 U.S. 1047 (2003). So may actions filed to make a political point. See Saltany v. Reagan, 886 F.2d 438, 440 (D.C. Cir. 1989). 38. Compare Szabo Food Serv. v. Canteen Corp., 823 F.2d 1073, 1083 (7th Cir. 1987) (considering intent) with Oliveri v. Thompson, 803 F.2d 1265, 1275 (2d Cir. 1986) (not considering intent). 39. See Silva v. Witschen, 19 F.3d 725, 730 (1st Cir. 1994) (upholding sanctions when proper motive was mixed with improper objective of pressuring defendants); City of E. St. Louis v. Circuit Court for Twentieth Judicial Circuit, St. Clair County, Ill., 986 F.2d 1142, 1143 (7th Cir. 1993) (“[C]ounsel has a duty to make a reasonable inquiry in advance of filing to ensure that no action for any improper purpose is filed.”); but see Sussman v. Bank of Israel, 56 F.3d 450, 459 (2d Cir. 1995) (“A party should not be penalized for or deferred from seeking and obtaining warranted judicial relief merely because one of his multiple purposes in seeking that relief may have been improper.”); In re Kunstler, 914 F.2d 505, 518 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991) (“if a complaint is filed to vindicate rights in court, and for some other purpose, a court should not sanction counsel for an intention that the court does not approve, so long as the added purpose is not undertaken in bad faith and is not so excessive as to eliminate a proper purpose. Thus, the purpose to vindicate rights in court must be central and sincere.”). 40 . Compare Senese v. Chicago Area I.B. of T. Pension Fund, 237 F.3d 819 (7th Cir. 2001) (Rule 11 may be violated when a complaint with a legal and factual basis is filed for an improper purpose); Matta v. May, 118 F.3d 410 (5th Cir. 1997) (same). Cf.; with Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1991) (en banc) (a well-grounded complaint cannot be sanctionable whatever the attorney’s subjective intent); Burkhart v. Kinsley Bank, 852 F.2d 512, 515 (10th Cir. 1988) (same); Nat’l Ass’n of Gov’t Employees v. Nat’l Fed’n of Fed. Employees, 844 F.2d 216, 223-24 (5th Cir. 1988). See also 2 James Wm. Moore et al., Moore's Federal Practice § 11.11[8][d] (3d ed. 1997). 41.See Fed. R. Civ. P. 11 advisory committee’s notes (1993) (“Although arguments for a change of law are not required to be specifically identified, a contention that is so identified should be viewed with greater tolerance under the rule.”). 42 . See, e.g., Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 156-57 (4th Cir. 2002) (reversing sanction of attorney who inartfully argued for reversal of Circuit precedent). Gibson v. Chrysler Corp., 261 F.3d 927, 949 (9th Cir. 2001) (reversing the award of Rule 11 sanctions because “we recognize the difficulties faced by parties who seek to advance novel legal arguments”); Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998) (“[T]he purpose of Rule 11 is to deter frivolous lawsuits and not to deter novel legal arguments or cases of first impression.”); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 524 (9th Cir. 1994) (dismissed complaint was not sanctionable as it raised important questions of first impression); United States v. Alexander, 981 F.2d 250, 253 (5th Cir. 1993) (“Parties who argue points of first impression in a circuit are not ordinarily the recipients of Rule 11 sanctions order,”); Moreno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990) (“[T]o constitute a frivolous legal position for purposes of Rule 11 sanction, it must be clear under existing precedents that there is no chance of success and no reasonable argument to extend, modify or reverse the law as it stands.”). 43. Fed. R. Civ. P.11 advisory committee’s notes (1993). See Savino v. Computer Credit Inc., 164 F.3d 81, 88 (2d Cir. 1998). 44.Fed. R. Civ. P.11(b)(3). See, e.g. U.S. Bank Nat’l Assn. v. Sullivan-Moore, 406 F.3d 465, 469-70 (7th Cir. 2005) (sanctions upheld where law firm caused the eviction of tenant knowing that service address was incorrect). 45. Fed. R. Civ. P. 11 advisory committee’s notes (1993). 47. Fed. R. Civ. P. 11 advisory committee’s notes (1993) (Rule “establishes an objective standard, intended to eliminate any empty-head pureheart justification for patently frivolous arguments.”). See also Bus. Guides Inc., 498 U.S. at 549-51 (objective reasonableness standard applies to both attorneys and represented parties). 48. Young v. City of Providence, 404 F.3d 33, 40 (1st Cir. 2005). 49. Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (failure to allege essential elements of a Section 1985(3) claim is sanctionable). 50. Divane v. Krull Elec. Co., 200 F.3d 1020, 1028 (7th Cir. 1999) (quoting Brown v. Fed’n of State Med. Bds. of the U.S., 830 F.2d 1429, 1435 (7th Cir. 1987)). 51. Divane, 200 F.3d at 1028. See also Jones v. Int’l Riding Helmets Ltd., 49 F.3d 692, 695 (11th Cir. 1995); Rodick v. City of Schenectady, 1 F.3d 1341, 1351 (2d Cir. 1993) (“Where an attorney is forced to plead under exigent circumstances, her reliance on the affidavits of her clients should be sufficient to constitute reasonable investigation for purposes of Rule 11.”). 54. Fed. R. Civ. P. 11 advisory committee’s notes (1993). 55. Id. (non-monetary sanctions include striking the offending filing, admonition, reprimand, or censure; attendance at continuing legal education courses; or referral to disciplinary authorities). 56. Id. See also Methode Elecs. v. Adam Techs., 371 F.3d 923, 926 (7th Cir. 2004) (court cannot award attorney’s fees as a sanction sua sponte); Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 57 (2d Cir. 2000) (“[A]bsent a specific motion for attorneys’ fees, the court only had authority to order sanctions payable to the court.”). 57. Fed. R. Civ. P. 11(c)(2). But see Massengale v. Ray, 267 F.3d 1298, 1302 (11th Cir. 2001) (Rule 11 does not allow for an award of attorney fees to a pro se litigant as a sanction). At the same time, the court may account for the attorney’s financial condition in determining whether and the degree to which to issue monetary sanctions. DiPaolo v. Moran, 407 F.3d 140, 145-46 (3rd Cir. 2005). 58. Fed. R Civ. P. 11 advisory committee’s notes (1993). 59. Fed. R. Civ. P. 11(c). See also Bus. Guides, 498 U.S. at 544-48 (Rule 11 applies to represented parties who sign court filings). A court may not, however, sanction a represented party for violation of Rule 11(b)(2). Fed. R. Civ. P. 11(c)(2)(A). Rule 11 also applies to pro se litigants, but may account for the pro se litigant’s financial situation in determining whether to award monetary sanctions. Moore v. SouthTrust Corp., 392 F. Supp. 2d 724, 736 (E.D. Va. 2005). 60. This 1993 provision effectively overturns Pavelic & LeFlore v. Marvel Entm’t Group, 493 U.S. 120 (1989). The advisory committee’s notes justify this expansion of potential liability on the ground that the safe-harbor provision, discussed below, makes it appropriate to regard a law firm as jointly responsible for the sanctionable conduct of its agents. 61 . Fed. R. Civ. P. 11 advisory committee’s notes (1993). 62. Fed. R. Civ. P. 11(c)(1)(A). Counsel are expected to give informal notice prior to drafting and serving such a motion. Fed. R. Civ. P. 11 advisory committee’s notes (1993). See Gordon v. Unifund CCR Partners, 345 F.3d 1028 (8th Cir. 2003) (reversing award of Rule 11 sanction when movant did not comply with safe harbor provisions). The Fourth Circuit has held that the safe harbor provisions are not jurisdictional and therefore waivable. Brickwood Contractors, Inc. v. Datanet Eng’g. Inc., 369 F.3d 385 (4th Cir. 2004) (en banc); Rector v. Approved Fed. Sav. Bank, 265 F.3d 248, 253 (4th Cir. 2001). 63. Barber v. Miller, 146 F.3d 707 (9th Cir. 1998). 65. Fed. R. Civ. P.11(c)(1)(B); see Johnson v. Cherry, 422 F.3d 540, 551-53 (7th Cir. 2005); Baycol Steering Comm. v. Bayer Corp., 419 F.3d 794, 809-10 (8th Cir. 2005). 66. See Margo v. Weiss, 213 F.3d 55, 64 (2d Cir. 2000). 68. See, e.g., S. Travel Club Inc. v. Carnival Air Lines, 986 F.2d 125 (5th Cir. 1993); Cooper v. Salomon Bros. Inc., 1 F.3d 82 (2d Cir. 1993); Click v. Abilene Nat’l Bank, 822 F.2d 544 (5th Cir. 1987). Cf. Morley v. Ciba-Geigy Corp., 66 F.3d 21 (2d Cir. 1995); Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330 (9th Cir. 1995); Transamerica Commercial Finance Corp. v. Banton Inc., 970 F.2d 810 (11th Cir. 1992); Burda v. M. Ecker Co., 954 F.2d 434 (7th Cir. 1992); Riverhead Sav. Bank v. Nat’l Mortgage Equity Corp., 893 F.2d 1109 (9th Cir. 1990); DeSisto Coll. Inc. v. Line, 888 F.2d 755 (11th Cir. 1989); Markwell v. County of Bexar, 878 F.2d 899 (5th Cir. 1989); Ortho Pharmaceutical Corp. v. Sona Distrib., 847 F.2d 1512 (11th Cir. 1988). 69. Nyer v. Winterthur Int’l, 290 F.3d 456, 460 (1st Cir. 2002). See also Cooter & Gell, 496 U.S. at 405. 70. John C. Rothermich, Ethical and Procedural Implications of “Ghostwriting” for Pro Se Litigants: Toward Increased Access to Civil Justice, 67 Fordham L. Rev. 2687, 2697 (1999) (undisclosed ghostwriting likely violates Model Rules 3.3, 8.4(c) and (d)). 71 . Laremont-Lopez v. Se. Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1077 n.2 (E.D. Va. 1997). 72. Compare Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001) (participating in drafting an appellate brief constitutes “substantial assistance” in violation of Rule 11), with Ricotta v. California, 4 F. Supp. 2d 961, 986-87 (S.D. Cal. 1998) (distinguishing ghostwriting from mere “informal advice”); United States v. Eleven Vehicles, 966 F. Supp. 361, 367 (E.D. Pa. 1997) (ghostwriting interferes with the court’s ability to superintend the proceedings); Johnson, 868 F. Supp. 1226, 1232 (D. Colo. 1994) (finding ghostwriting “contemptuous irrespective of the degree to which it is considered unprofessional by the governing bodies of the bar”). 73. For a useful recent survey of ethics opinions on this point, see Arizona Formal and Informal Opinion 05-06 (July 2005) (adopting a minority view that an attorney is not ethically required to disclose that he or she engaged in ghostwriting a court document). See also, American Bar Association Committee on Ethics and Professional Responsibility, Informal Op. 1414 (1978) (condoning ghostwriting alone, but condemning an attorney who “sat in at trial,” in addition to preparing multiple court documents, while his client represented himself as pro se). 74. Laremont-Lopez, 968 F. Supp. at 1078;s Johnson v. Bd. of County Comm’r, 868 F. Supp. at 1231. 75. See Laremont-Lopez, 968 F. Supp. at 1077. 76. See Duran, 238 F.3d at 1273; Ricotta, 4 F. Supp. 2d at 987-88 (suggesting that local rule, and bar associations should address ghostwriting directly); Johnson, 868 F. Supp. at 1227 (declining to impose sanctions despite a finding that attorney engaged in inappropriate ghostwriting). 77. Laremont-Lopez, 968 F. Supp. at 1077 n.2. See generally Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 n.7 (1987) (affirming the inherent authority of courts to punish for contempt). 78. Laremont-Lopez, 968 F. Supp. at 1079. 79. Johnson, 868 F. Supp. at 1232 (suggesting that ghostwriting constitutes “extensive undisclosed assistance to a pro se litigant” in violation of Model Code of Professional Responsibility DR 1-102(A)(4)). 80 . See Fed. R. Civ. P. 11; Wesley v. Don Stein Buick Inc., 987 F. Supp. 884, 886 (D. Kan. 1997); Laremont-Lopez, 968 F. Supp. at 1078-79; Johnson, 868 F. Supp. at 1231 (focusing on the risk that ghostwriting will enable attorneys to sidestep Rule 11’s certification requirement that “allegations and factual contentions have evidentiary support”); Rothermich, supra note 68, at 2716-18. 81. Johnson, 868 F. Supp. at 1232. See also Duran, 238 F.3d at 1273. 82. Laremont-Lopez, 968 F. Supp. at 1078. 83 . See Duran, 238 F.3d at 1273 (threatening to sanction attorneys for future violations); Johnson, 868 F. Supp. at 1232. 84. Laremont-Lopez, 968 F. Supp. at 1077 n.2. 86. Model Rule of Professional Conduct 1.16 (2002). See generally Jona Goldschmidt, In Defense of Ghostwriting, 29 Fordham Urban L.J. 1145,1175-78 (2002), for a discussion of the problems associated with ghostwriting that legal services attorneys face in light of ethical rules recognizing either fully represented parties or pro se litigants. 87. Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986) (internal citations omitted). 88. Id. See also Dreiling v. Peugot Motors of America, 768 F.2d 1159, 1165 (10th Cir. 1985). 89. 28 U.S.C. § 1927, amended by Antitrust Procedural Improvements Act of 1980, Pub. L. No. 96-349, § 3, 94 Stat. 1154, 1156. See generally Janet Eve Josselvn, The Song of the Sirens-Sanctioning Lawyer Under 28 U.S.C. § 1927, 31 B.C. L. Rev. 477, 478 (1990). 90 . The court’s inherent power to sanction is broader still in that it permits sanctions for conduct beyond the filing of documents or “multiplying” proceedings. Yet, it requires a finding of bad faith. Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991). 91. United States v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 948 F.2d 1338, 1345-46 (2d Cir. 1991). 92. The filing of complaint is not sanctionable under Section 1927 because that section applies only to activities occurring after the commencement of litigation. See Willis v. City of Oakland, 231 F.R.D. 597 (N.D. Ca. 2005). 93 . See id.; Trulis v. Barton, 107 F.3d 685, 694 (9th Cir. 1995); Oliveri, 803 F.2d at 1273; . Although the matter is not free from doubt, law firms may not be sanctioned under Section 1927. Claiborne v. Wisdom, 414 F.3d 715, 723 (7th Cir. 2005). 94. Lee v. L.B. Sales Inc., 177 F.3d 714, 718 (8th Cir. 1999). See also Claiborne, 414 F.3d at 721; United States v. Knott, 256 F.3d 20, 31 (1st Cir. 2001); Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc); Naegele v. Albers, 355 F. Supp. 2d 129, 145 (D.D.C. 2005). 95. Johnson v. Cherry, 422 F.3d 540 (7th Cir. 2005). There is some evidence that courts and movants have sidestepped the procedural requirements of Rule 11, such as the safe harbor rule, to seek and award sanctions under § 1927 without these safeguards. Danielle Kie Hart, Symposium: Happy (?) Birthday Rule 11: and the Chill Goes On – Federal Civil Rights Plaintiffs Beware: Rule 11 Vis-à-Vis 28 U.S.C. § 1927 and The Court’s Inherent Power, 37 Loy. L.A. L. Rev. 645 (2004). 96. Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1359 (3rd Cir. 1990); See also Int’l Bhd., 948 F.2d at 1316; United States v. Shuch, 139 B.R. 57, 62 (D. Conn. 1992). 97. Matter of Yagman, 796 F.2d 1165, 1184 (9th Cir. 1986) (reversing the district court’s award of fees under Section 1927). |