Commercial Litigation and Arbitration

Sanctions — Failing to Advise Client of Meritlessness of Claim Warrants § 1927 Sanctions — Sixth Circuit § 1927 Standards

There is a split in the Circuits on the issue whether subjective bad faith is a prerequisite to imposition of sanctions under 28 U.S.C. § 1927. See Joseph, Sanctions: The Federal Law of Litigation Abuse § 23(B)(1) (4th ed. 2008). From Royal Oak Entm’t, LLC v. City of Royal Oak, 2009 U.S. App. LEXIS 5439 (6th Cir. Mar. 17, 2009):

A court may assess fees without finding bad faith, but"[t]here must be some conduct on the part of the subject attorney that trial judges, applying the collective wisdom of their experience on the bench, could agree falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party." Ridder v. City of Springfield, 109 F.3d 288, 298 (6th Cir. 1997) (citing In re Ruben, 825 F.2d 977, 984 (6th Cir. 1987)). In short, "§ 1927 sanctions require a showing of something less than subjective bad faith, but something more than negligence or incompetence. Thus, an attorney is sanctionable when he intentionally abuses the judicial process or knowingly disregards the risk that his actions will needlessly multiply proceedings." Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2007) (internal citations omitted). "We construe 'vexatiously multiplying proceedings' to include conduct where 'an attorney knows or reasonably should know that a claim pursued is frivolous, or that his or her litigation tactics will needlessly obstruct the litigation of non-frivolous claims.'" Shepherd v. Wellman, 313 F.3d 963, 969 (6th Cir. 2002) (quoting Jones v. Cont'l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986)). "We have also held that § 1927 sanctions are appropriate where 'an attorney has engaged in some sort of conduct that, from an objective standpoint, falls short of the obligations owed by the member of the bar to the court and which, as a result, causes additional expense to the opposing party.'" Shepherd, 313 F.3d at 969 (quoting Holmes v. City of Massillon, 78 F.3d 1041, 1049 (6th Cir. 1996) (internal quotation omitted)).

Here, the court imposed sanctions for counsel's failure to fulfill her "obligation as an officer of [the] Court to instruct her clients that they had no legal remedy and either voluntarily dismiss this case or make a good faith argument to change the law." Royal Oak Entm't, 486 F. Supp. 2d at 679. Because Plaintiffs' counsel did neither, we believe the district court properly concluded that she "therefore fell short of her obligations to the bar." Id. at 680. These failures forced Defendants to incur significant additional expenses after Defendants' motion to dismiss pointed out why Plaintiffs had no claim. Thus, we affirm the sanctions against Plaintiffs' counsel under § 1927.

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