I have previosuly written about how you can conduct a background search to determine whether your lawyer has been disciplined by either the Supreme Court or the Bar Association of the state or states in which the lawyer is licensed. If you are hiring a lawyer to represent you either as the plaintiff or defendant in a lawsuit, you should also find out whether the lawyer has been penalized by a court for filing a frivolous lawsuit or otherwise acting undreasonably in connection with the lawsuit.
The most well known court-ordered penalty or sanction is Rule 11 of the Federal Rules of Civil Procedure. It provides that, by signing a document filed with the court, the lawyer is pledging that the document is not being used for an proper purpose, is based on existing law or a good faith argument for a change in existing law, and is not frivolous. In addition, Rule 11 empowers federal courts to fine and otherwise punish lawyers who violate the Rule.
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
Many states require lawyers who have been sanctioned more than a particular amount, often $1000, to notify the applicable disciplinary authority of the penalty. This requirement has had an unfortunate unintended consequence. Too many courts are hesitant to impose a sanction that will trigger the disclosure requirement. As a result, judges impose financial sanctions just below the disclosure limit. The lawyer’s conduct therefore doesn’t come to the attention of the disciplinary authority, and the amount of the fine is so low that it doesn’t have much a deterent effect on the lawyer.
Many states have established court-ordered penalities that are comparable to those found in Rule 11. Most states also have passed laws that provide specific penalties and fines for lawyers who have been found to violate the rules relating to discovery—the process by which the parties to a lawsuit request and exchnage information from each other.
There isn’t a sure fire way to determine whether your lawyer has been sanctioned by a court. Most lawyers don’t handle lawsuits in federal court. Thus, Rule 11 doesn’t directly apply. And even when a state has enacted a similar rule, it’s often called something other than Rule 11. It can be worthwhile to enter your lawyers name in Google or some other search engine and see whether anything comes up when you look for discovery or litigation sanctions. Sometimes your best bet is to ask the lawyer during the interview whether they have ever been sanctioned and if so how much and for what.