Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement of the Ethical Duty to Report

Abstract

This article seeks to draw attention to certain ethical misconduct of litigators that is routinely accepted, tolerated or ignored by the legal profession. Though there are other examples, I focus on conduct prohibited by Federal Rule of Civil Procedure 11. In particular, I concentrate on that rule's so-called "safe harbor" provision, which I argue serves to insulate, and possibly encourage, illegitimate advocacy in the form of the assertion and maintenance of frivolous claims, defenses or other contentions - ironically, the very conduct that the rule was ostensibly intended to deter. Regardless of the frequency of this sort of misbehavior, the offending attorney can, as a practical matter, escape both court sanctions and professional discipline. In an effort to end the toleration of those who habitually engage in such an illegitimate fashion, I propose an enhancement of the ethical duty to report through the creation and maintenance of "litigation misconduct databases" that will monitor this and other unethical litigation behavior, which presently is de facto unregulated.