Submitted by: Matthew King(73) Tewell & King Log in to become a member of Matthew King's Fan Club!
CR 11: Enforcing Civility or Creating Conflicts?
By Matthew R. King
It seems that it has become common to threaten an opposing party with CR 11 sanctions for everything from amending pleadings to moving for summary judgment. In light of this practice, every practitioner should be familiar with CR 11’s requirements.
CR 11 requires the attorney[1] to sign every pleading, motion or memorandum. That signature certifies that, after a reasonable inquiry, the filing is well grounded in both fact and law, and that the filing is not interposed for an improper purpose.[2] CR 11’s goals are to deter baseless filings and limit abuses of the judicial system.[3]
In analyzing a CR 11 challenge, the Court first looks to whether a reasonable inquiry was made before the filing.[4] A complete failure to investigate warrants sanctions.[5] The Court uses an objective standard in reviewing the attorney’s inquiry and evaluates five factors:
The amount of time available to investigate
Reliance on the client for factual support
Whether the attorney received the file from another attorney
The complexity of the legal and factual issues and
The Court of Appeals rephrased these elements, as the “knowledge that could have been acquired at the time of filing, the type of claim and the difficulty in acquiring sufficient information, which party has access to the relevant facts, and the significance of the claim in a pleading as a whole".[7]
While these tests seem to require a rigorous investigation pre-filing, this is not truly the case. While blind reliance on a client is not a reasonable investigation,[8] a client’s factual contentions, supported by a review of objective evidence, satisfies CR 11.[9] Note, however, that there is a continuing obligation to assert only those claims and defenses well grounded in fact.[10] Essentially the Court determines whether the attorney acted reasonably in taking the action.[11]
Even if the facts are undisputed, a party may violate CR 11 by making a claim not grounded in existing law. CR 11 does allow filings that seek to extend, modify, or reverse existing law. Generally, cases of first impression are not violative of CR 11.[12] But, claims that are clearly not available to a party can violate CR 11.[13] In making this determination, the Court considers the areas of law that were researched and the detail of research involved.[14] Based on this, it is unlikely that many cases will fall under this category of CR 11.
Finally, a party may violate CR 11 by submitting a filing for an improper purpose. These purposes include needlessly increasing legal costs,[15] spite,[16] filing a motion after promising an opposing party not to,[17] and delaying hearings on a motion by filing affidavits of prejudice.[18] While these seem to be fairly extreme examples of CR 11 violations, other, less extreme conduct may also violate CR 11.
Assuming the Court finds that CR 11 violation has occurred, it must award sanctions.[19] The Court has broad discretion in awarding sanctions, which can run the gamut from a reprimand to attorneys fees and penalties.[20] The Court must also make factual findings regarding the research into the facts and law to allow for meaningful appellate review.[21] Note that sanctions can be imposed against both the attorney and the party.[22] Any sanctions imposed will be reviewed under an abuse of discretion standard.[23]
Familiarity with CR 11 and its standards will make the practitioner more aware of the issues surrounding a CR 11 challenge. It would seem that most actions taken during litigation are appropriate and do not violate CR 11. The practitioner’s time would usually be better spent attempting to resolve the issue instead of creating a separate conflict that may not advance the client’s interest.
Matthew King is a partner with Tewell & King, a Seattle litigation firm. His practice includes litigation in the State and Federal Courts. He can be reached at (206) 623-2369 or via e-mail at mking@tewell-king.com.
[1] Pro se parties are held to the same standards as attorneys. Harrington v. Pailthorp , 67 Wn.App. 901, 911, 841 P.2d 1258 (1992), rev. den. 121 Wn.2d 1018 (1993).
[2] CR 11. See also Miller v. Badgley , 51 Wn.App. 285, 753 P.2d 530 (1988).
[3] Bryant v. Joseph Tree, Inc. , 119 Wn.2d 210, 219, 829 P.2d 1099 (1992).
[13] See Kirlan Venture Capital, Inc. v. Regis, et al. , King County Superior Court No. 00-2-14333-8 SEA, Memorandum Opinion Relating to CR 11 Motions of Regis and Tenneson (2003)(Where the court sanctioned parties for bringing claims not well founded in law.) (Opinion available at the King County Superior Court’s Website.)
[14] Doe v. Spokane and Inland Empire Blood Bank , 55 Wn.App. 106, 112, 780 P.2d 853 (1989).
[15] In re Cooke , 93 Wn.App. 526, 969 P.2d 127 (1999).
[22] Rhinehart v. Seattle Times, Co. , 51 Wn.App. 561, 754 P.2d 1243 (1988). See Kirlan Venture Capital, Inc. v. Regis, et al. , King County Superior Court No. 00-2-14333-8 SEA, Memorandum Opinion Relating to CR 11 Motions of Regis and Tenneson (2003) (Where the Court imposed sanctions on both the attorneys and the parties.)
[23] Cooper v. Viking Ventures , 53 Wn.App. 739, 770 P.2d 659 (1989).
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