5. Court Sanctions

In addition to discipline and the risk of civil liability, a lawyer who acts improperly in a litigation can be sanctioned by the court. Sanctioning rules have been adopted in many states and in the federal system. Perhaps the most attention has focused on a federal rule called Rule 11 of the Federal Rules of Civil Procedure. That Rule played almost no role in American litigation until 1983, when it was strengthened considerably and sanctions then became common. They became so common in fact that the Rule was amended in 1993, to narrow its sweep, although the Rule retains significant force.

Rule 11 now states that a lawyer who signs, files, submits, or advocates based on a pleading or other document submitted to the court, thereby certifies the following to the court:

1. that the document is not presented for an improper purpose 'such as to harass or to cause unnecessary delay or needless increase in the cost of litigation';

2. that the legal argument made in the document is 'warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law';

3. that factual allegations 'have evidentiary support' or are likely to have support after investigation; and

4. that denials of allegations have evidentiary support or 'are reasonably based on a lack of information or belief.

Violation of rules like this one can result in monetary sanctions. While most monetary sanctions for violations of Rule 11 have been relatively small—several thousands of dollars or less—some have been very high, in the hundreds of thousands of dollars. Several have exceeded one million dollars. Under the recent amendments, the likelihood of large awards is significantly reduced but not eliminated.

6. Right to Counsel

Civil liability, judicial sanctions, and discipline are the three dominant mechanisms for ensuring that lawyers comply with their professional obligations, including their obligation of competence, and for providing remedies in the event of misconduct or incompetence. A fourth mechanism deserves mention.

The Sixth Amendment to the United States Constitution guarantees crim­inal defendants in state and federal courts 'the assistance of counsel'. The Supreme Court has held that this guarantee requires that counsel be 'effec­tive'. Persons accused of a serious crime (one that can result in incarcera­tion) have a right to a lawyer paid by the state if they are unable to pay for their own lawyer.

The constitutional right to the effective assistance of counsel protects criminal defendants only. Civil litigants generally have no constitutional right to a free or an effective lawyer, although statutory regimes in all jurisdictions strive to provide free counsel to indigents in certain matters, such as divorce and claims for state benefits.

What must a criminal defense lawyer—whether retained privately or provided by the state—do to fulfill the constitutional obligation of 'effective' counsel? The Supreme Court has held that counsel becomes ineffective if his or her advice is not 'within the range of competence demanded of attorneys in criminal cases'. The test is 'an objective standard of reasonableness'. Although the Court has refused to be more specific in its statement of the test, it has given examples of things that must be done and not done:

Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

A defendant who can prove that his or her counsel was constitutionally ineffective may be entitled to a new trial. The courts, however, have not made the constitutional guarantee terribly demanding. It is rare for a court to find that a criminal defense lawyer has rendered ineffective assistance. But it does happen if, for example, a defense lawyer has spent no time preparing the case, interviewed no witnesses, and conferred with his or her client hardly at all.

Where a defendant establishes that counsel was constitutionally ineffective, the defendant will be entitled to a new trial only if he or she can also show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome'. Where the defendant can show this, he or she will have demon­strated 'prejudice' sufficient to warrant a new trial.