COLUMN > Ethics & the Law
BY MARK J. FUCILE
[R]equests for sanctions should not turn into satellite litigation or become a ‘cottage industry’ for lawyers.”
— Washington State Physicians Ins. Exchange v. Fisons, 122 Wn.2d 299, 356, 858 P.2d 1054 (1993)
“Sanctions litigation has not become the “cottage industry” the Washington Supreme Court warned against 31 years ago in its seminal Fisons decision. At the same time, even a cursory electronic search of Washington trial and appellate decisions will reveal that sanctions motions are relatively common. Some are directed solely against clients.11 See, e.g., Magana v. Hyundai Motor America, 167 Wn.2d 570, 220 P.3d 191 (2010). Some are directed solely at lawyers.22 See, e.g., Matter of Firestorm 1991, 129 Wn.2d 130, 916 P.2d 411 (1996). Still others are directed at both lawyers and their clients.33 See, e.g., Washington State Physicians Ins. Exch. v. Fisons, 122 Wn.2d 299, 858 P.2d 1054 (1993). When a sanctions motion is filed by an opposing party, the lawyer on the receiving end can face difficult conflict issues depending on whom the motion is targeted against and the lawyer’s involvement in the underlying conduct. Some conflicts in these scenarios are waivable, while others are not. If not, the lawyer may be faced with obligatory withdrawal.
In this column, we’ll focus on an analytical framework for determining whether the lawyer involved has a conflict and, if so, whether the conflict can be waived by the client. To put those issues in context, we’ll first briefly survey both the procedural and conflict rules involved.
Before we do, two caveats are in order.
First, although sanctions will form the backdrop for our discussion of conflicts, the accent here will be on conflicts rather than the nuances of particular sanctions rules or statutes.
Second, we’ll focus today on civil rather than criminal proceedings.
PROCEDURAL RULES
Procedural rules and statutes addressing sanctions are many and varied.44 In addition to CR 11 and CR 37, see also CR 26(g) (certifications on discovery responses), Fed. R. Civ. P. 26(g) (same), CR 30(d) (deposition misconduct), Fed. R. Civ. P. 30(d)(3) (same), RCW 4.84.185 (expenses for opposing frivolous claims), 28 U.S.C. § 1927 (expenses for “vexatious” litigation). Sanctions may be imposed at the appellate level under, among others, Washington RAP 18.9(a) and Fed. R. App. P. 38. Courts also have inherent authority to control the conduct of counsel appearing before them and invoke this authority when, for example, imposing the sanction of disqualification. See Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir. 1986) (discussing authority to disqualify counsel). Two of the most commonly cited, however, are Washington Superior Court Civil Rules (CR) 11 and 37.55 See generally Elizabeth A. Turner, 3A Wash. Prac., Rules Practice CR 11 and CR 37 (7th ed. 2023) (overview of each rule). Both are patterned generally on their federal counterparts.66 See Fed. R. Civ. P. 11 and 37.
CR 11(a) primarily addresses pleadings, motions, and other “legal memorandum[s].” Under CR 11(a)(1)-(2), an attorney’s signature on that class of documents is “a certificate by … the attorney that the … attorney has read the pleading, motion, or legal memorandum, and that to the best of the … attorney’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” the document involved “is well grounded in fact” and “is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law[.]” CR 11(a)(3), in turn, includes in the attorney’s certification that the pleading or other paper “is not interposed for any improper purposes, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[.]” Sanctions under CR 11 can be imposed on a lawyer, the lawyer’s client, or both. The rule vests courts with broad authority to impose an “appropriate sanction”—including attorney fees.77 See generally Philip Talmadge, Emmelyn Hart-Biberfeld, and Peter Lohnes, “When Counsel Screws Up: The Imposition and Calculation of Attorney Fees as Sanctions,” 33 Seattle U. L. Rev. 437, 446-47 (2010) (surveying Washington case law for determining an “appropriate sanction” under CR 11).
CR 37, in turn, addresses sanctions for a broad spectrum of discovery misconduct ranging from incomplete answers to discovery requests to the failure to comply with discovery orders.88 CR 26(g) includes a certification requirement similar to CR 11 for lawyers signing discovery responses. See generally Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 685-86, 132 P.3d 115 (2006) (discussing certification under CR 26(g)). See also Fed. R. Civ. P. 26(g) (analogous federal certification). Like CR 11, sanctions under CR 37 can be imposed against a lawyer, the lawyer’s client, or both. Sanctions under CR 37 are potentially very broad and can include striking pleadings, limiting evidence, and outright dismissal in addition to attorney fees.99 Washington’s appellate courts have established factors that courts should consider when imposing particular sanctions from this broad range. See generally Burnet v. Spokane Ambulance, 131 Wn.2d 484, 496-98, 933 P.2d 1036 (1997) (noting considerations especially when imposing severe sanctions); Carroll v. Akebono Brake Corp., 22 Wn. App. 2d 845, 863-64, 514 P.3d 720 (2022) (same).
CONFLICT RULES
Lawyer conduct leading to sanctions motions by a litigation opponent may invoke many different Rules of Professional Conduct. In this article, however, we’ll draw a distinction between RPCs that may be involved in the conduct underlying a sanction motion and the conflict that may be presented when the motion is filed. We’ll focus on conflicts once a sanctions motion is filed—however ultimately resolved by the court concerned.
RPC 1.7(a)(2) addresses conflicts between the interest of a lawyer and the lawyer’s own client:
(a) Except as provided in paragraph (b) [addressing waivers], a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
…
(2) there is a significant risk that the representation of one or more clients will be materially limited by … a personal interest of the lawyer.
Comments 8 and 10 to RPC 1.7 elaborate on the nature of the conflict:
[8] … [A] conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s … interests … . The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
[10] The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer’s own conduct … is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.
Conflicts under RPC 1.7(a)(2) are often referred to as “material limitation” conflicts because the financial or professional interest of the lawyer may “materially limit” the lawyer’s professional judgment to the detriment of the client.1010 See generally ABA, Annotated Model Rules of Professional Conduct 177-79 (10th ed. 2023) (surveying material limitation conflicts). In the sanctions context, the concern is whether the lawyer’s professional judgment on behalf of the client will be compromised by the lawyer’s role in the conduct underlying the sanctions motion and the lawyer’s potential interest in avoiding sanctions being entered against the lawyer personally.1111 See State v. Wood, 19 Wn. App. 2d 743, 759, 498 P.3d 968 (2021) (addressing conflicts between the professional interests of a lawyer and the lawyer’s client under RPC 1.7(a)(2)); see also Cal. St. Bar. Formal Op. 1997-151 (1997) (discussing conflicts in the sanctions context).
As we’ll discuss in the next section, some conflicts in this context are waivable by the client but others are not.1212 See RPC 1.7(b) (waivers); RPC 1.7, cmts. 14-15 (discussing waivable and nonwaivable conflicts). If the conflict is not waivable, RPC 1.16 ordinarily requires the lawyer’s withdrawal (subject to court approval, if applicable). In any event, conflicts—and their implications—must be timely discussed with the client so that the client can make informed decisions about the representation.1313 See RPC 1.4 (duty of communication); see also ABA Formal Op. 481 (2018) (discussing a lawyer’s duty to inform a client of a possible material error in handling a client’s work); Shoemake ex rel. Guardian v. Ferrer, 168 Wn.2d 193, 225 P.3d 990 (2010) (same).
ANALYTICAL FRAMEWORK
At the outset, it is important to underscore that each potential conflict situation turns on its own facts and, as a result, “one size does not fit all.” Rather, each situation usually involves its own unique nuances that merit close analysis. That said, there are some recurring patterns that form the contours of a general framework to analyze conflicts in this area. They turn principally on whether the sanctions involved are sought against the client alone, the lawyer alone, or both.
Client Alone. If the sanctions are directed solely against the client for asserted misconduct by the client alone, then the lawyer should not ordinarily have a conflict in defending the client. Magana v. Hyundai Motor America, 167 Wn.2d 570, 220 P.3d 191 (2010), for example, focused on the corporate defendant—including its in-house legal department—withholding documents rather than outside counsel.1414 See also TrueBlue, Inc. v. Marchel, No. 52665-4-II, 2020 WL 2857610 (Wash.Ct. App. June 2, 2020) (unpublished) (sanctions for discovery misconduct entered against client only). Black can fade to gray, however, if the lawyer advised the client concerning the behavior involved. In Angelo v. Kindinger, No. 82388-4-I, 2022 WL 1008314 (Wash. Ct. App. Apr. 4, 2022) (unpublished), for example, a party opponent in an arbitration sought sanctions against a lawyer’s client for improperly withholding material information and the arbitrator imposed sanctions solely against the client. Later, the client sued the lawyer—arguing, in relevant part, that the lawyer had advised the client to withhold the information concerned and, therefore, had a conflict when the party opponent brought the sanctions motion because the lawyer had an incentive to minimize his role in advising the client. The Court of Appeals reversed summary judgment for the lawyer and his firm—finding the lawyer did have a conflict. The Court of Appeals in Angelo also suggested that when the conduct of the client and the lawyer are interwoven and they have the potential to “point fingers” at each other, the conflict is not waivable and the lawyer must withdraw:
At that point [i.e., when the party opponent sought sanctions] … [the lawyer] … was in direct conflict with Angelo as to who was to blame for the nondisclosure that eventually resulted in sanctions against Angelo. Despite this conflict, … [the lawyer] … did not advise Angelo of the conflict or withdraw from representing him in the arbitration.1515 2022 WL 1008314 at *10. The Court of Appeals also noted that an unwaived conflict in this scenario may justify fee disgorgement as a remedy for the client affected. Id. at *11.
Lawyer Alone. If the sanctions are directed solely against the lawyer, the lawyer may be able to continue if—depending on the circumstances—the client waives the conflict. In this scenario, although the lawyer bears the direct risk of sanctions—for example, monetary sanctions under CR 11 for making frivolous legal arguments1616 See, e.g., Matter of Critchlow, No. 36774-6-III, 2021 WL 734777 (Wash. Ct. App. Feb. 25, 2021) (unpublished) (CR 11 sanctions against lawyer only for asserted frivolous legal arguments).—the client’s case may still be impacted. In Engstrom v. Goodman, 166 Wn. App. 905, 271 P.3d 959 (2012), for example, a lawyer improperly obtained a declaration from a represented party in violation of RPC 4.2 (the “no contact” rule) in opposing a request for a trial de novo following an arbitration award for the lawyer’s client. The lawyer was sanctioned—and the court both struck the declaration and ordered the trial de novo. If the reasonably foreseeable risk of injury to the client’s case is remote even if the lawyer is sanctioned, then the lawyer in most circumstances should be able to continue if the client waives the conflict. In some instances, however, either the risk to the lawyer may be so great1717 See, e.g., Ota v. Wakazuru, No. 82840-1-I, 2023 WL 1962363 (Wash. Ct. App. Feb. 13, 2023) (unpublished) (although remanded for further analysis of sanction factors, lawyer was accused of improperly seeking to influence witness). or the potential harm to the client may be so significant1818 See, e.g., Carroll v. Akebono Brake Corporation, supra note 9, 22 Wn. App.2d 845 (although remanded for further analysis of sanction factors, lawyer’s withholding of information about autopsy put client’s case at risk of dismissal as discovery sanction). that the conflict ripens into a nonwaivable one because the lawyer cannot reasonably exercise professional judgment on behalf of the client.1919 A generally similar set of considerations arises if an opposing counsel or party files a bar grievance against a lawyer in ongoing litigation. For a discussion of this adjacent area, see ABA Formal Op. 94-384 (1994).
Lawyer and Client. If the sanctions are directed against both the lawyer and the client, conflict issues quickly come into sharp relief. In In re Marriage of Wixom and Wixom, 182 Wn. App. 881, 332 P.3d 1063 (2014), for example, the Court of Appeals disqualified a lawyer sua sponte when he tried to shift the blame for jointly sanctioned conduct from himself to his client. The Court of Appeals in Wixom noted that the conflict in that instance is nonwaivable. By contrast, in K.M.P. by and through Pinto v. Big Brother Big Sisters of Puget Sound, 16 Wn. App. 2d 475, 483 P.3d 119 (2021), the Court of Appeals found that a conflict was waivable when the lawyer admitted that any responsibility for sanctions was his alone.2020 The decision in K.M.P. came in the context of whether the lawyer had a nonwaivable conflict requiring withdrawal as a result of sanctions motion filed against both the lawyer and the client. This suggests that if a lawyer stipulates that any sanctions are solely the responsibility of the lawyer, the conflict may be waivable by the client absent other considerations.
SUMMING UP
In analyzing potential conflicts arising from sanctions motions, the proverbial “devil is in the details,” and any given situation must be evaluated on its own facts. Nonetheless, framing the analysis around whether the sanctions are sought against the client, against the lawyer, or against the client and the lawyer can be a useful way to bring a measure of clarity to some otherwise murky waters.
About the author
Mark J. Fucile of Fucile & Reising LLP handles professional responsibility and risk management for lawyers, law firms, and legal departments throughout the Northwest. He is a former chair of the WSBA Committee on Professional Ethics and has served on the Oregon State Bar Legal Ethics Committee. He is editor-in-chief of the WSBA Washington Legal Ethics Deskbook and is a principal co-editor of the WSBA Law of Lawyering in Washington and the OSB Ethical Oregon Lawyer. He can be reached at 503-860-2163 or at:
NOTES
1. See, e.g., Magana v. Hyundai Motor America, 167 Wn.2d 570, 220 P.3d 191 (2010).
2. See, e.g., Matter of Firestorm 1991, 129 Wn.2d 130, 916 P.2d 411 (1996).
3. See, e.g., Washington State Physicians Ins. Exch. v. Fisons, 122 Wn.2d 299, 858 P.2d 1054 (1993).
4. In addition to CR 11 and CR 37, see also CR 26(g) (certifications on discovery responses), Fed. R. Civ. P. 26(g) (same), CR 30(d) (deposition misconduct), Fed. R. Civ. P. 30(d)(3) (same), RCW 4.84.185 (expenses for opposing frivolous claims), 28 U.S.C. § 1927 (expenses for “vexatious” litigation). Sanctions may be imposed at the appellate level under, among others, Washington RAP 18.9(a) and Fed. R. App. P. 38. Courts also have inherent authority to control the conduct of counsel appearing before them and invoke this authority when, for example, imposing the sanction of disqualification. See Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir. 1986) (discussing authority to disqualify counsel).
5. See generally Elizabeth A. Turner, 3A Wash. Prac., Rules Practice CR 11 and CR 37 (7th ed. 2023) (overview of each rule).
6. See Fed. R. Civ. P. 11 and 37.
7. See generally Philip Talmadge, Emmelyn Hart-Biberfeld, and Peter Lohnes, “When Counsel Screws Up: The Imposition and Calculation of Attorney Fees as Sanctions,” 33 Seattle U. L. Rev. 437, 446-47 (2010) (surveying Washington case law for determining an “appropriate sanction” under CR 11).
8. CR 26(g) includes a certification requirement similar to CR 11 for lawyers signing discovery responses. See generally Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 685-86, 132 P.3d 115 (2006) (discussing certification under CR 26(g)). See also Fed. R. Civ. P. 26(g) (analogous federal certification).
9. Washington’s appellate courts have established factors that courts should consider when imposing particular sanctions from this broad range. See generally Burnet v. Spokane Ambulance, 131 Wn.2d 484, 496-98, 933 P.2d 1036 (1997) (noting considerations especially when imposing severe sanctions); Carroll v. Akebono Brake Corp., 22 Wn. App. 2d 845, 863-64, 514 P.3d 720 (2022) (same).
10. See generally ABA, Annotated Model Rules of Professional Conduct 177-79 (10th ed. 2023) (surveying material limitation conflicts).
11. See State v. Wood, 19 Wn. App. 2d 743, 759, 498 P.3d 968 (2021) (addressing conflicts between the professional interests of a lawyer and the lawyer’s client under RPC 1.7(a)(2)); see also Cal. St. Bar. Formal Op. 1997-151 (1997) (discussing conflicts in the sanctions context).
12. See RPC 1.7(b) (waivers); RPC 1.7, cmts. 14-15 (discussing waivable and nonwaivable conflicts).
13. See RPC 1.4 (duty of communication); see also ABA Formal Op. 481 (2018) (discussing a lawyer’s duty to inform a client of a possible material error in handling a client’s work); Shoemake ex rel. Guardian v. Ferrer, 168 Wn.2d 193, 225 P.3d 990 (2010) (same).
14. See also TrueBlue, Inc. v. Marchel, No. 52665-4-II, 2020 WL 2857610 (Wash.Ct. App. June 2, 2020) (unpublished) (sanctions for discovery misconduct entered against client only).
15. 2022 WL 1008314 at *10. The Court of Appeals also noted that an unwaived conflict in this scenario may justify fee disgorgement as a remedy for the client affected. Id. at *11.
16. See, e.g., Matter of Critchlow, No. 36774-6-III, 2021 WL 734777 (Wash. Ct. App. Feb. 25, 2021) (unpublished) (CR 11 sanctions against lawyer only for asserted frivolous legal arguments).
17. See, e.g., Ota v. Wakazuru, No. 82840-1-I, 2023 WL 1962363 (Wash. Ct. App. Feb. 13, 2023) (unpublished) (although remanded for further analysis of sanction factors, lawyer was accused of improperly seeking to influence witness).
18. See, e.g., Carroll v. Akebono Brake Corporation, supra note 9, 22 Wn. App.2d 845 (although remanded for further analysis of sanction factors, lawyer’s withholding of information about autopsy put client’s case at risk of dismissal as discovery sanction).
19. A generally similar set of considerations arises if an opposing counsel or party files a bar grievance against a lawyer in ongoing litigation. For a discussion of this adjacent area, see ABA Formal Op. 94-384 (1994).
20. The decision in K.M.P. came in the context of whether the lawyer had a nonwaivable conflict requiring withdrawal as a result of sanctions motion filed against both the lawyer and the client.