Academic journal article The Journal of Law in Society

Attorneys' Ability to Pay Sanctions under 28 U.S.C. S. 1927

Academic journal article The Journal of Law in Society

Attorneys' Ability to Pay Sanctions under 28 U.S.C. S. 1927

Article excerpt

  I. INTRODUCTION  II. BACKGROUND      A. History of 28 U.S.C. [section] 1927         1. Legislative History         2. Statutory Interpretation         3. 28 U.S.C. [section] 1927 and Rule 11         4. Federal Circuits' Interpretations         5. Ability to Pay      B. Chilling Effects 'of 28 U.S.C. [section] 1927         1. Statistical Background         2. Chilling Public Interest Attorneys and Civil Rights              Plaintiffs         3. Arguments against the Chilling Effects      C. Current Circuit Court Split         1. Seventh Circuit         2. Ninth Circuit III. ANALYSIS      A. Statutory Interpretation         1. Opposing Viewpoints         2. Uniformity         3. Lower Court Discretion      B. The Role of the Judiciary         1. Balancing Litigation Roles         2. The Supreme Court   IV. CONCLUSION 

I. INTRODUCTION

The universal idea that individuals who act badly should be reprimanded applies to many areas in life. In the legal community, actors in the litigation process who abuse or burden the court system are punished through sanctions in the name of promoting judicial efficiency. (2) Attorneys are often targeted by such sanctions. Attorneys' sanctions are an important part of the justice system because they have a consequential effect on all actors of the litigation process. The public policy reasoning behind these sanctions is to ensure the efficiency and integrity of the judicial system. (3) The promotion of such values, however, causes conflicts when attorneys are unable to pay their sanctions. Such conflicts can have great implications for litigants, in terms of their access to the judicial system.

The question of whether courts should reduce sanction fees under 28 U.S.C. [section] 1927 for attorneys who are unable to pay is currently being debated in the federal circuits. (4) The Seventh Circuit holds that a violating attorney's ability to pay does not affect the determination of what constitutes an appropriate sanction because the purpose of the statute is to make the victim whole. (5) Meanwhile, the Ninth Circuit's deterrence approach considers the plain meaning of 28 U.S.C. [section] 1927 and allows for the lower courts' discretion in adjusting sanctions for attorneys who are unable to pay. (6) The real dispute in this split demonstrates ideological differences between the circuits' characterization of the underlying purpose of the statute. A punitive or compensatory interpretation of 28 U.S.C. [section] 1927 leads to different arguments in support of or against the consideration of an attorney's ability to pay sanctions. Ultimately, judicial discretion aids in the process of determining appropriate sanctions. In addition, given the plain language of the statute and the reality that lack of discretion can lead to detrimental effects for individuals trying to access the judicial system, other considerations against discretionary sanctions are outweighed by such factors. Further, judicial discretion should be limited to the specific facts of each case to help reduce the potential for broad abuse of discretion.

This Note will first provide a context for addressing the issue of attorneys who cannot afford to pay sanctions with the statute's legislative history and the current circuit court split. Next, it will analyze how this issue affects major actors of the litigation process, such as attorneys and plaintiffs. The burdens of sanctions on public interest attorneys specifically and what effect the outcome of this circuit split can have on this group will be discussed. In addition, the effect of sanctions on plaintiffs who bring forth civil rights claims will be addressed, specifically in regards to their access to the justice system. Counterarguments to the chilling effects of sanctions will also be examined. The analysis will then consider the current circuit split, bringing to light the underlying statutory interpretation dispute and addressing the strengths and weaknesses of each approach. …

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