Friday, April 23, 2021

More on Sydney Powell's frivolous defense to a motion for sanctions for a frivolous lawsuit

Yesterday I commented on Sidney Powell's recent reply to a motion for sanctions for her complaint related the presidential election results in Wisconsin.  See here.  Here is an update: Law & Crime has more on the story here and given this new reporting, I can totally see the support for the state's argument.

Apparently, the main point of Powell’s argument is that her failed complaint cannot be found frivolous because it was rejected on procedural grounds such as standing and timeliness.  

This argument is itself frivolous.  Any second year law student can tell you that according to both rules of procedure and rules of professional conduct, lawyers have a duty to avoid frivolous litigation.  The most common source of sanctions for frivolous claims are the state equivalents of Rule 11 of the Federal Rules of Civil Procedure, which provide that all pleadings must be well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that they must not be filed for any improper purpose.  The Model Rules of Professional Conduct mirror the duties expressed in the procedural rules in Model Rules 3.1 and 4.4(a).

If a lawyer files a complaint that is not well grounded in fact or warranted in law, the filing is frivolous, regardless of the reason for which it is eventually dismissed.  It is the fact that the court and the other parties brought to the suit have to waste time, effort and money for the filing that justifies the sanctions.  Lawyers can also be subject to discipline under both procedural and ethical rules  for pursuing claims for an “improper purpose.”   

If the claim is frivolous, there is no right to bring the claim to begin with and the lawyer is subject to sanctions for helping the client to do so.  

In her recent motion, Powell apparently is asking for an evidentiary hearing.  She shouldn't get one; but if she does, she is going to lose.  Badly.  The standard for imposing sanctions for frivolousness is based on an objective determination of whether the attorney made a reasonable inquiry into the facts and the law before filing the claim, for which the court could consider whether the attorney had sufficient time for investigation before filing, the extent to which the attorney had to rely on his or her client for the factual foundation underlying the claim, the complexity of the facts, and whether discovery was necessary to develop the underlying facts.  Many courts have made clear, however, that it is not permissible to use discovery as a “fishing expedition” or as the sole means to find out whether the claim is well grounded in fact or law. 

Does anyone really think that an objective application of this standard benefits Powell's position?  

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