The Reach of Rule 11: Sanctions, Appeals, and Voluntary Dismissals

Abstract

This article previews the issues and arguments in Cooter & Gell v. Hartmarx Corp., on the Supreme Court’s 1989-90 appellate docket. The lawyers at Cooter & Gell have given the Supreme Court the chance to say many things about the standards of lawyering. The Supreme Court is finally going to tell practicing lawyers everywhere the consequences of certain behavior in federal court.

First, the Court is going to say whether a federal trial court has the authority to impose sanctions on a lawyer after the lawyer voluntarily dismisses a case. Stated somewhat differently, once the case is gone, may the court still punish the lawyer? Second, the Court is going to say whether a higher court may review those sanctions by determining whether the trial court abused its discretion in punishing the lawyer. Third, the Court is going to determine whether that higher court may further dun an already sanctioned attorney by charging the lawyer the costs of bringing a losing appeal.

Stated somewhat differently, how many times can a transgressing lawyer be punished?Believe it or not, this is a suit about suits. It's also a suit about nonsuits. For the second time this term (see Pavelic & Leflore v. Marvel Entertainment Group, 110 S.Ct. 456 (1989) the Supreme Court is being asked to tailor the perfect fit for Rule 11.

Cooter & Gell contends that Rule 11 sanctions do not apply to appeals, which they believe are governed by Federal Rule of Appellate Procedure 38. Under that rule, a sanction is available only if there is a determination that the appeal was frivolous. With regard to Rule 11, at least, there is a split among the federal circuit courts concerning whether it is legitimate to tax the costs of a losing appeal to the sanctioned attorney. The First and Seventh Circuits have held that the award of such attorney's fees comes within the language and underlying policy of Rule 11, because the appellate fees were incurred "because of" the initial Rule 11 violation. To the contrary, the Fourth and Ninth Circuits have held that the award of such additional sums under Rule 11 is inappropriate.

Cooter & Gell is now additionally complicated by the Court's earlier holding this term in Pavelic. Since it was the law firm of Cooter & Gell that was sanctioned by the trial court, rather than any individual attorney, a further lurking issue is whether the imposition of sanctions on the firm constitutes plain error. Notwithstanding this legal technicality, attorneys for both sides have urged the Supreme Court to supply guidance to federal practitioners concerning the relationship of voluntary dismissals and appeals to Rule 11. Whatever the Court decides on these issues, its opinion in Cooter & Gell will for the first time provide an authoritative voice on the scope, purposes, and application of Rule 11.