Rule 11 and How To Talk To Your Client

By Francis Rojas

Rule 11 sanctions – it might be one of the first rules that sticks by you when you first read the rules of civil procedure (be it federal or state rules).  Pursuant to Rule 11, by signing a paper, you (or an unrepresented party) are hereby representing to the court, as an officer of the court, that what you have signed to has backing in fact and law

In other words, you (or an unrepresented party) are making the representation that:

• The case is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
• The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing law or for establishing new law;
• The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
• The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b); Miller v. Bittner, 985 F.2d 935 (8th Cir. 1993).

Of most important note is the fact that it doesn’t matter if at least one of the arguments is valid.  What matters is the purpose behind the lawsuit.  Ballentine v. Taco Bell Corp., 135 F.R.D. 117 (E.D.N.C. 1991). Further, an attorney or unrepresented party is not excused by good-faith mistake of law, carelessness, ignorance of law, or personal belief. Lloyd v. Schlag, 884 F.2d 409 (9th Cir. 1989); Temple v. WISAP USA in Texas, 152 F.R.D. 591 (D. Neb. 1993); Collin County, Tex. v. Homeowners Ass’n for Values Essential to Neighborhoods, 654 F.Supp. 943 (N.D. Tex. 1987).

So in order to properly assert valid arguments, here is a checklist that a young attorney must follow:

1. Talk to your client about the attorney-client privilege.  Make sure your client understands that everything that is discussed is privileged and that the client should not waive the privilege by talking about your communications with third parties.
2. Encourage honesty.  Explain to your client that your ability to perform your job may be adversely affected if your client keeps things from you.  It is always the best policy to inform your client that you must know all good and bad facts, in order to adequately represent them.
3. Do your own fact finding research.  First, you must discuss with your client the events and the evidence that you may have to prove a claim.  Second, regardless of how credible the statement of your client is, you must take the investigation into your own hands.  So review documents, talk to witnesses, any other affected individuals, and anyone who might have knowledge of the case.  Keep in mind, however, that you cannot talk to the other party (meaning, pursuant to Minnesota Rules of Professional Conduct Rule 4.1 imposes on an attorney the duty to be honest with all communications and Rule 4.2 imposes on an attorney the duty to refrain from communicating with individuals represented by counsel).
4. The final point is also of utmost importance.  Make sure you do your legal research, even if you think the law seems clear.  Find out who really has standing under a claim, find out how courts have interpreted the law, and assess the value and risks of the case.