Capitol Chronicle

Although confronted with other pressing issues, Congress has found the time to take action on “attorney accountability.” The House of Representatives has passed H.R. 420, which is entitled the “Lawsuit Abuse Reduction Act.”

(3) Removes any judicial discretion in Rule 11 sanctions under the Federal Rules of Civil Procedure. (4) Current Rule 11 now contains a “safe harbor” provision that allows an attorney to withdraw or correct pleadings after he or she gets access to information that shows a claim is without merit to avoid Rule 11 sanctions. H.R. 420 deletes the safe harbor. (5) Expands Rule 11 sanctions to allow monetary sanctions including reimbursement of a party's attorney fee and compensatory costs in connection with frivolous lawsuits.

(6) Requires a Federal District Court to suspend from the practice law for one year or longer an attorney who is found to have violated Rule 11 three or more times. (7) Establishes a rebuttable presumption that it is a Rule 11 violation to attempt to litigate in any forum a claim or defense involving the same plaintiff and defendant that has been litigated and lost on three consecutive occasions. (8) Imposes additional sanctions for the willful and intentional destruction of documents sought under the rules of and highly relevant to a federal court proceeding. (9) Requires public disclosure of the record of a Rule 11 proceeding unless the presiding judge determines that the interest justifying nondisclosure of the record outweighs any public health and safety interests served by the disclosure. It does contain some exemptions such as the attorney–client privilege or other recognized privilege or state or federal laws that protect the confidentiality of crime victims, including victims of sexual abuse.

The common practice for amending federal rules, which was not followed in H.R. 420, is set forth in the federal Rules Enabling Act. Ordinarily, the process starts with the United States Judicial Conference, which will consider or draft evidentiary and procedural rules. They will then be vetted by public comment, reconsidered, and then submitted to the Supreme Court of the United States for consideration and promulgation. The proposed rules are then transmitted to Congress, which retains the ultimate power to veto any rule before it takes effect.

The legislation, which passed largely on partisan lines with Republicans supporting and Democrats opposing, may now be considered by the Senate.