The recent opinion issued by U.S. Judge District Linda V. Parker of the Eastern District of Michigan, Southern Division, in King v. Whitmer is a study in what a court can do to an attorney who has signed off on a pleading that appears to the court to have violated Rule 11. There is no mystery to Parker’s view on the actions of the attorneys in that case, which dealt with allegations of voter fraud in the 2020 election. Parker writes:

“This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. That is what happened here.”

Taking a few steps back, prior to Rule 11, attorneys were governed by Rules 24 and 21: Equity Rules 24 (Signature of Counsel) and 21 (Scandal and Impertinence), which have been consolidated and unified in Rule 11. Basically, if an attorney signs off on a pleading, the statements or inquiries therein must have a basis in law and fact, not presented to delay progress of the litigation, nor to cause litigants unnecessary expense, and are not frivolous. If the court finds that there is a breach of Rule 11(b), the court may impose appropriate sanctions on any attorney or law firm or litigant it finds has breached the intent of the rule. The court may impose sanctions on its own initiative, or on the basis of a properly filed motion, after notice and hearing. In 1983, revisions to Rule 11 were intended to allow for the striking of pleadings, as well as for the imposition of disciplinary sanctions to stop attorneys, law firms, and litigants from committing abuses in the signing of pleadings. For those attorneys who were practicing in the last century, in the 80s, this was the Rambo era. A deposition could go for hours over objections to one word. The intent of the 1983 revisions to Rule 11 was to make attorneys, law firms and litigants appreciate that they were being held to a standard of conduct and professionalism, and to make judges aware that they had a range of available sanctions to assure that the punishment fit the crime of the errant lawyer/firm/litigant. In 1993, further revisions were intended to assure that:

“Arguments for extensions, modifications, or reversals of existing law or for creation of new law do not violate subdivision (b)(2) provided they are ‘nonfrivolous.’ This establishes an objective standard, intended to eliminate any ‘empty-head pure-heart’ justification for patently frivolous arguments. However, the extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether paragraph (2) has been violated. Although arguments for a change of law are not required to be specifically so identified, a contention that is so identified should be viewed with greater tolerance under the rule.”