'An Inquiry Reasonable Under the Circumstance:' Applying Rule 11 to Local Counsel
40 Pages Posted: 4 Feb 2016
Date Written: 2015
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: Suggested Citation