Wednesday, October 11, 2006

Rule 11 Redux

by Michael S. Frisch

Attorneys confront potential liability from a variety of directions: malpractice claims from clients or others who claim quasi-client status, bar discipline that threatens the license to practice and sanctions from courts for instituting or maintaining frivolous claims. A recent case from the Eleventh Circuit, Amlong & Amlong, P.A. v. Denny's Inc., 457 F.3d 1180, decided July 31, 2006, raises interesting issues regarding an attorneys duty of ongoing loyalty to her client in the face of evidence that casts doubt on the validity of the client's case. The court overturned a trial judge's order imposing sanctions in excess of $400,000 by a 2-1 vote.

The lawyers took over a case alleging that an employee of Denny's "had suffered a horrific pattern of sexual harassment, rape and assault" by her supervisor. The client had limited English skills and a Haitian interpreter participated in the eight days of depostion of the client, translating the questions and answers. The client testified falsely about issues related to her immigration status but corrected the testimony on her lawyer's advice. There were no corroborating witnesses. Concerned about the client's credibility, the lawyers retained a respected polygraph expert, who concluded that the client was telling the truth on the core allegations.

The lawyers filed an extensive errata sheet after the deposition. The errata sheet corrections were in some respects harmful to the case but provided details that the client had not been able to remember when deposed. Eventually, the case was dismissed as a sanction for failure to comply with an order reopening discovery.

A Magistrate conducted a sanctions hearing and concluded that the attorneys had acted in good faith in presenting the case. Without a hearing, the District Judge disagreed and ordered a hefty monetary sanction. The 11th Circuit overturned the sanction, finding error in the rejection of the credibility determinations of the Magistrate. The dissent characterized the majority opinion as "holding that an attorney's subjective good intentions may relieve her from liability for sanctions for her objectively reckless pursuit of a patently frivolous claim."

The case underscores the dilemma that plaintiffs attorneys confront with a difficult client who alleges severe damages without corroborating witnesses or physical evidence. The lawyers could have moved to withdraw after the deposition but decided to press forward after the polygraph test supported the client's credibility. The majority decision provides some comfort to such lawyers who come down on the client's side despite the potential liability for maintaining a frivolous case. However, the question of whether a lawyer's subjective belief in the client's case trumps the ethical duty to refrain from frivolous litigation remains a live one.

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