Standard #5: Proceed With Caution in Seeking Sanctions
by Billy Walker
“Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.”
Some may wonder why the Office of Professional Conduct would comment on the Standards of Professionalism and Civility adopted by the Utah Supreme Court on October 16, 2003 since these Standards are not the Rules of Professional Conduct. Well, it is true that unlike the mandatory nature of the Rules of Professional Conduct, the Standards are intended to be aspirational. And, it is true that the Office of Professional Conduct’s primary investigative focus is the violation of Rules of Professional Conduct as a basis for possible discipline against an attorney. However, conduct by an attorney that does not comply with the Standards may only be one step removed from a violation of the Rules of Professional Conduct.
Standard #5 in its first part provides that “Lawyers shall not lightly seek sanctions…” One of the Webster’s Dictionary’s definitions for the word “lightly” is “without due care or consideration.” Let me suggest that “lightly” not only means without careful consideration; it also means without a good faith basis. In this respect, the definitional difference between “careful consideration” and “good faith” is probably non-existent when you look at an attorney’s reasons or motivation for seeking sanctions in hindsight. Attorneys are required by Rule 3.1 (Meritorious Claims and Contentions) of the Rules of Professional Conduct to not “bring or defend a proceeding, or assert or controvert an issue therein unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law…” Therefore, a lawyer could easily see his or herself on the other side of a Bar complaint alleging a violation of Rule of Professional Conduct 3.1 for “lightly” seeking sanctions against another attorney.
The second part of Standard #5 is that “Lawyers…will never seek sanctions against or disqualification of another for any improper purpose.” “Improper purpose” as set forth in this part of Standard #5 complements the non-frivolous requirement of Rules of Professional Conduct 3.1. In other words, a finding that a lawyer does not have good faith basis in law and fact to seek sanctions or disqualification may lead to the conclusion that there was an improper purpose. However, there is another Rule of Professional Conduct that is also applicable and that is Rule 4.4 (Respect for Rights of Third Persons). Rule 4.4(a) of the Rules of Professional Conduct provides: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” When lawyers take actions for no substantial purposes other than embarrassment, delay or to burden, this is essentially harassment and violates the lawyer’s duty as an officer of the court. So beware; a vindictively motivated request for sanctions or disqualification of another lawyer could lead to a violation of Rule 4.4 of the Rules of Professional Conduct.
It should also be noted that violation of the “good faith” principles of Standard #5 could also expose the lawyer to other penalties. See U.C.A. 78-27-56, and Utah Rules of Civil Procedure Rule 11. U.C.A. 78-27-56 allows the court to award reasonable attorney fees to a prevailing party if an action was without merit and brought in bad faith. And Rule 11 of the Utah Rules of Civil Procedure allows a court to impose sanctions when a case is “presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” So, if an attorney’s personal makeup is such that he or she is not inclined to follow the guidelines of Standard #5 and the fear of a possible Rule of Professional Conduct violation is not incentive enough for that attorney to curtail his or her actions within the framework of Standard #5, further incentive should be provided by the possibility of monetary exposure.
The message is that the Standards of Professionalism and Civility, including Standard #5, are aspirational guidelines. However, some of the same conduct that breaches a Standard could also breach the Rules of Professional Conduct and come to the attention of the Office of Professional Conduct as part of a Bar complaint.