Litigation lawyers strive to be zealous advocates for their clients. Sometimes clients seek out aggressive lawyers to represent them in matters. They want a lawyer who will hold the line with opposing counsel during a heated deposition or who will assertively cross-examine a witness at trial. When done appropriately, this is in line with the ABA Model Rule encouraging attorneys to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf,” Model Rule 1.3, Comment [1].

Lawyers may bluff, sweet-talk, or appear unyielding as tactics to try to achieve a positive result for their clients. However, lawyers can run into trouble when they take “zeal in advocacy” too far. Willfully obstructive tactics, frivolous filings, and acts intended to drive up litigation costs can result in real risk to the lawyer or even the client—and the conduct can be sanctioned.

The below suggests ways for lawyers to advocate for their client’s interests within the ethical bounds of the law and to protect their clients when other parties are being needlessly vexatious.

Vexatious Litigation Under Federal and California Law

Lawyers who engage in bad-faith litigation tactics may face sanctions under one or a combination of authorities. The resulting sanctions can vary in severity. In some of the most egregious cases, courts have referred attorneys to the local bar in conjunction with imposing other monetary sanctions.

Rule 11 of the Federal Rules of Civil Procedure authorizes sanctions for making representations that are legally frivolous, factually unsupported, or impose an improper purpose, such as to harass or cause unnecessary delay, in signed pleadings or other filings. Section 128.7 of the California Code of Civil Procedure (CCP) was modeled after Rule 11 and also applies to submitted papers, Marriage of Sahafzadeh-Taeb & Taeb, 39 Cal. App. 5th 124, 133 (2019). Litigants can ask a federal court to impose Rule 11 sanctions, or ask a California court to impose CCP § 128.7 sanctions, against counsel, law firms, or parties.

Federal statute 28 U.S.C. § 1927 permits sanctions on lawyers for unreasonably driving up the costs of litigation in what is often referred to as “vexatious litigation.” Although the “American rule” typically does not recognize fee-shifting as a standard consequence to litigation, the impact of Section 1927 can result in fee-shifting in cases involving serious misconduct. A lawyer can be sanctioned if he or she “unreasonably and vexatiously” “multiplies the proceedings” in any case. Section 1927 sanctions are typically imposed in egregious cases—such as for repetitive or intentional conduct. This is because merely violating a rule of procedure or filing a lawsuit later found to be frivolous, alone, may not be enough to warrant sanctions under the statute.

CCP § 128.5 is broader than CCP § 128.7, authorizing sanctions against attorneys or parties for meritless or bad faith actions and tactics intended to be “frivolous” or “cause unnecessary delay.” California also has a vexatious litigant statutory scheme: § 391 addresses litigants who engage in abusive litigation tactics, such as frivolous or excessive filings. The statute authorizes the imposition of sanctions against the litigants, their attorneys, or both. Under Rule 11 or CCP §§ 128.5 and 128.7 “safe harbor” provisions, litigants may be given the opportunity to “cure” alleged violations. Section 1927 does not have an equivalent provision.

Level Set Client Expectations

Problems can arise when lawyers carry out their clients’ wishes blindly, without first conducting thorough and diligent assessment of the merits of the claim, the applicable law, or the local rules of procedure for the applicable jurisdiction.

If a client does not appreciate the risks in adopting an aggressive approach, the lawyer may be facing criticism from not only the court but also from their client. Lawyers can try to educate their clients that being aggressive for the sake of being aggressive (and in the absence of support on the merits of the claim) can create risks of sanctions against the lawyer, the firm, as well as the client. Sanctions could even include dismissal of the case in egregious circumstances.

Advising clients of such risks may help steer the client away from an otherwise problematic litigation strategy. And if lawyers engage in such conduct and do not explain the risks to their clients, the clients may threaten a legal malpractice claim against their lawyers if the lawyers’ misconduct leads to dismissal or sanctions.

Keep Track of Issues With Opposing Counsel

Litigants, and their attorneys, on the receiving end of vexatious litigation might feel pressured to respond in kind. However, if there is a potential pattern of misconduct by the other side, a motion for sanctions may be appropriate. Documenting the conduct as soon as it begins can help support such a motion. For example, Section 1927 sanctions may be appropriate for a pattern of misconduct during discovery or for maintaining baseless and excessive claims for years when counsel should have known the claims had no merit.

Additionally, communication alerting the other side to potential concerns and deficiencies can help in two ways: (1) the notice can bring the conduct to the other side’s attention and give them the opportunity to correct it; and (2) if the other side fails to correct the conduct, the communication can help satisfy a showing later on that the party’s decision to continue with aggressive litigation was done intentionally.

It can be helpful for litigants to specifically track those expenses that are increased as a result of vexatious litigation (such as costs for certain depositions or fees for opposing frivolous briefing). These could be used as support for a later award.

Vet Claims Before Filing

Counsel or parties can be sanctioned for filing specious claims or neglecting to reasonably investigate the law and facts before filing. That is not to say that a plaintiff has violated Section 1927 simply by bringing a case that is ultimately defeated on its merits. Rather, courts look for evidence that the litigant (or their lawyers) did not engage in any review of the facts or law in support of a lawsuit. It can also be problematic if the lawyers continued to pursue a case aggressively (and at great expense for the other parties), even after learning that the case lacked merit. Reviewing the strengths and weaknesses of the law and facts of one’s position at the outset, and as the facts develop, may aid in preventing a motion for sanctions under one or several applicable authorities.

By being aware of the lines between assertive advocacy and what risks potentially improper or sanctionable conduct, lawyers can work to zealously protect their clients’ best interests without inviting a potential motion for sanctions to cross their desks.