The recent opinion issued by U.S. Judge Linda V. Parker of the Eastern District of Michigan, Southern Division, in King c. Whitmer is a study of what a court can do to a lawyer who has signed a pleading which the court appears to have violated rule 11. There is no mystery in Parker’s view of the actions of lawyers in this case, which dealt with allegations of voter fraud in the 2020 election. Parker writes:
“This trial represents a historic and profound abuse of the judicial process. It is one thing to take responsibility for asserting the rights associated with an allegedly fraudulent election. It is quite another to take the charge of deceiving a federal court and the American people into believing that rights have been violated, regardless of whether any laws or rights have in fact been violated. This is what happened here.
Taking a few steps back, before article 11, lawyers were governed by articles 24 and 21: rules of fairness 24 (Signature of the council) and 21 (Scandal and impertinence), which were consolidated and unified in the Article 11. Basically, if a lawyer signs a pleading, the statements or inquiries therein must have a basis in law and in fact not be presented to delay the progress of the litigation, nor to cause unnecessary expense to litigants, and are not frivolous. If the court finds that there is a violation of rule 11 (b), the court may impose appropriate penalties on any lawyer, law firm or litigant that it deems to have violated the intent of the rule. The court can pronounce sanctions on its own initiative or on the basis of a duly filed request, after notice and hearing. In 1983, revisions to Rule 11 aimed to allow the expungement of pleadings, as well as the imposition of disciplinary sanctions to prevent lawyers, law firms and litigants from committing abuses in the signing of pleadings. procedure. For lawyers practicing in the last century, in the 1980s, it was the Rambo era. A deposition could go on for hours on objections to one word. The intent of the 1983 revisions to Rule 11 was to convey to lawyers, law firms and litigants that they were held to a standard of conduct and professionalism, and to let judges know that they were prepared. a range of sanctions available to ensure that the punishment matches the crime of the wandering lawyer / firm / litigant. In 1993, further revisions aimed to ensure that:
“Arguments for extensions, modifications or reversals of existing law or for the creation of a new law do not violate subsection (b) (2) provided they are” not frivolous ” . This sets an objective standard, intended to eliminate any “head empty-hearted” justification for blatantly frivolous arguments. However, the extent to which a litigant has studied the issues and found some support for their theories, even in minority opinions, in law journal articles, or in consulting other lawyers, must certainly be taken into account in determining if subsection (2) has been violated. Although the arguments for a change in law need not be specifically identified, an assertion so identified must be viewed with greater tolerance under the rule. “