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

Posted: 17 May 2002

See all articles by Lonnie T. Brown

Lonnie T. Brown

University of Georgia School of Law

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.

Suggested Citation

Brown, Lonnie T., Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement of the Ethical Duty to Report. Ohio State Law Journal, Vol. 62, No. 5, 2001. Available at SSRN: https://ssrn.com/abstract=310742

Lonnie T. Brown (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

Register to save articles to
your library

Register

Paper statistics

Abstract Views
343
PlumX Metrics