RESOLUTION CONCERNING H.R. 420 (109th CONGRESS) AMENDING Fed. R.C.P. 11

WHEREAS,  H.R. 420 (109th Congress),  the "Lawsuit Abuse Reduction Act of 2005" ("H.R. 420"), has been introduced in United States House of Representatives;

WHEREAS, H.R. 420 is similar to H.R. 4571, the "Lawsuit Abuse Reduction Act of 2004" ("H.R. 4571") that was introduced in the 108th Congress, passed the House of Representatives, but not the Senate (H.R. 420 and H.R. 4571 are collectively referred to herein as the "Act");

WHEREAS, the Act would amend Fed. R. Civ. P. 11 ("Rule 11") by, among other things (1) making an award of sanctions by a judge mandatory rather than discretionary; (2) making Rule 11 and its terms applicable to state court cases deemed to involve "interstate commerce"; (3) including provisions governing venue in what the bill refers to as an effort to prevent forum shopping; and (4) requiring a federal district court to suspend from practice for one year a lawyer sanctioned three times under Rule 11;

WHEREAS, the implementation of the amendments to Rule 11 called for by H.R. 420  violates the established process under the Rules Enabling Act for amending the Federal Rules of Civil Procedure (see 28 U.S.C. ยงยง 2071-2077);

WHEREAS, the application through the Act of a federal procedural rule to state courts raises serious Constitutional concerns;

WHEREAS, the determination of whether to sanction counsel for litigation improprieties and, if so, the nature of the sanction, has been and should remain within the sound discretion of the trial judge who has observed the proceedings and their context;

The State Rule Counterpart to Rule 11

WHEREAS, the Supreme Court of Pennsylvania, with the support of the Philadelphia Bar Association and the Pennsylvania Bar Association ("PBA") House of Delegates, enacted in 2002 Rule 1023.1 of the Pennsylvania Rules of Civil Procedure ("Pa.RCP"), which rule is substantially identical to Rule 11;

WHEREAS, pursuant to Pa.RCP 1023.1 the signature of an attorney or pro se party constitutes a certificate that the signer has read the pleading, motion or other paper and that, to the best of that person's knowledge, information and belief, formed after reasonable inquiry, (1) it is not presented for an improper purpose; (2) the claims, defenses and other legal contentions are warranted by existing law or a nonfrivolous argument for the extension, modification or reversal of existing law; (3) the factual allegations have evidentiary support or, if specifically noted, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual allegations are warranted by the evidence, or if so noted, are reasonably based on a lack of information or belief;

WHEREAS, since Pennsylvania trial judges have the power under Pa.RCP 1023.1 to sanction lawyers and pro se litigants for pleadings, motions and other filings determined to be frivolous on grounds essentially identical to those available under Rule 11, it would be inappropriate and unnecessary to engraft Rule 11 to state court cases that may implicate interstate commerce;

WHEREAS, the amendments to Rule 11 that would be imposed by the Act fail to follow the process set forth in the Federal Rules Enabling Act, a process that is based on three fundamental concepts: (1) the central role of the judiciary in initiating judicial rulemaking, (2) procedures that permit full public participation, including by members of the legal profession, and (3) recognition of a congressional review period;

Venue Provisions

WHEREAS, the provisions of Section 4 of the Act concerning selection of the appropriate forum within which to bring a personal injury claim should not be enacted and applied in Pennsylvania because Pennsylvania already has venue rules, including a recently enacted venue provision that itself was designed to prevent perceived forum shopping in actions alleging professional negligence;

WHEREAS, it should remain within the purview of the states to establish local rules for procedures via the rulemaking authority of the Pennsylvania judiciary, and Congress should not change the venue of state courts in relation to a particular type of proceeding;

Mandatory Imposition of Sanctions
 
WHEREAS, the current version of Rule 11 from which Pa.RCP 1023.1 is drawn, allows courts to focus on the merits of the cases instead of extensive Rule 11 motions, while maintaining the ability to sanction attorneys for frivolous claims or defenses;

WHEREAS, the current versions of Rule 11 and Pa.RCP 1023.1 allow for judicial discretion in imposing sanctions for frivolous lawsuits and provide a reasonable "safe harbor" period to withdraw a particular claim or defense subject to a challenge.  The addition of the safe harbor provision has yielded a significant decline in Rule 11 satellite litigation without any noticeable increase in the number of frivolous filings;

WHEREAS, a system that provides for mandatory suspension of attorneys with three Rule 11 violations would have a chilling effect on advocacy and may disproportionately impact attorneys who practice in particular areas, such as civil rights, especially in that such violations cannot be appealed until after a judgment is rendered in a case;

WHEREAS, the Act also inappropriately would extend Rule 11 sanctions to discovery motions arising from document issues and failures to respond, which are currently and adequately addressed by Rules 26(g) and 37 of the Federal Rules of Civil Procedure and corresponding Pa.RCP 4019;

WHEREAS, the PBA Board of Governors and House of Delegates, on November 17 and 19, 2004, respectively, approved a resolution of its Civil Litigation Section opposing H.R. 4571 and any similar legislation;

WHEREAS, the Chester County Bar Association, by resolution dated October 20, 2004, also resolved that the Senate of the United States be urged to reject H.R. 4571;

WHEREAS, by letter dated January 19, 2005, PBA President Michael H. Reed advised the American Bar Association (ABA) Policy and Governance Group that the PBA would co-sponsor a resolution opposing H.R. 4571 or any similar legislation that may be introduced;

WHEREAS, on January 26, 2005, the Conference of Chief Justices adopted a proposal by its Professionalism and Competence of the Bar Committee strongly opposing "legislation like H.R. 4571 that would drastically change the traditional state role in determining ethics, jurisdiction and venue rules in state litigation;"

WHEREAS, on February 14, 2005, the ABA House of Delegates approved the Recommendations of the Council of the Tort Trial and Insurance Practice Section (November 15, 2004) and Council of the Section of Litigation (October 9, 2004) opposing enactment of any Congressional legislation resembling H.R. 4571, that would (1) change the current version of Rule 11 so as to impose mandatory sanctions and removing its current provisions that encourage attorneys to correct, modify or withdraw pleadings or motions; (2) impose any form of mandatory suspension due to prior Rule 11 violations; or (3) extend Rule 11 to problematic discovery motions, requests or non-responses that are subject to the sanctions provisions of the rules governing discovery;

WHEREAS, the Philadelphia Bar Association's State Civil Litigation Section, including its Rules and Procedure Committee and Federal Courts Committee, is also opposed to the Act or any similar legislation.

NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association opposes enactment of any Congressional legislation with provisions resembling those contained in either H.R. 420 or H.R. 4571.

AND BE IT FURTHER RESOLVED, that the Chancellor or his designee is authorized to take all necessary steps, including but not limited to contacting the Pennsylvania delegation to the United States Senate and House of Representatives, to convey the sense of the Association in this regard.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED:  MARCH 2, 2005