'An Inquiry Reasonable Under the Circumstance:' Applying Rule 11 to Local Counsel

40 Pages Posted: 4 Feb 2016

See all articles by Abby Abide

Abby Abide

University of Mississippi, School of Law, Students

Date Written: 2015

Abstract

Fed. R. Civ. P. 11 mandates that all attorneys certify that any documents they present to the court are neither frivolous nor interposed for an improper purpose. Courts often let local counsel, an attorney who typically only signs and files a document on behalf of an out-of-state attorney, off the hook in Rule 11 proceedings, refusing to apply any meaningful analysis to her actions.

This article argues that this is not the correct approach for courts to take. Rather, courts should independently determine whether local counsel acted reasonably under the circumstances, as required by the Rule. The text of Rule 11 does not differentiate between local and out-of-state attorneys. Policy considerations support this argument as well. Local counsel should not be permitted to act solely as a “rubber stamp” who blindly follows other attorneys. As an individual with specialized knowledge, local counsel should not be able to claim ignorance for the documents she signs. Because Rule 11 sanctions only attorneys who have acted unreasonably or with an improper purpose, creating a loophole for local counsel goes against the purpose of Rule 11. Additionally, the approach will further deter frivolous filings. Finally, using “reasonable reliance” as a factor, along with the court’s discretion to decide whether and what sanction should be imposed, ensures that local counsel will be sanctioned only when it is fair to do so.

There is currently a gap in legal scholarship concerning Rule 11 as it relates to local counsel. Additionally, this article is the first in the past twenty years to provide a case collection on the district court split in applying Rule 11 to local counsel.

Keywords: Federal Rules of Civil Procedure, Rule 11, local counsel, legal profession

JEL Classification: K40, K41

Suggested Citation

Abide, Abby, 'An Inquiry Reasonable Under the Circumstance:' Applying Rule 11 to Local Counsel (2015). Available at SSRN: https://ssrn.com/abstract=2725992 or http://dx.doi.org/10.2139/ssrn.2725992

Abby Abide (Contact Author)

University of Mississippi, School of Law, Students ( email )

MS 38677
United States

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