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Counsel.fees Discussion Slides Remedies

Counsel.fees Discussion Slides Remedies

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Published by George Conk
discussion slides
Remedies
Prof. George Conk
fordham Law School
April 16, 2014
discussion slides
Remedies
Prof. George Conk
fordham Law School
April 16, 2014

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Counsel Fees remedies spring 2014

George W. Conk

  

Adjunct Professor & Senior Fellow, Stein Center for Law & Ethics gconk@law.fordham.edu Room 409 212-636-7446

Counsel Fees spring 2014 remedies

1

The American Rule
Each party bears its own costs except….

Counsel Fees spring 2014 remedies

2

How lawyers’ fees are set

Free market pricing – lodestar/reasonable and custoamry

 

Court rules

Court decisions in fee-shifting and
common fund cases

Statutes
Counsel Fees spring 2014 remedies 3

R. 1.5 - A Reasonable Fee

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
Counsel Fees spring 2014 remedies 4

FRCP 54 – Judgment (d) Costs; Attorneys Fees

(2) Attorney's Fees. (A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.

Counsel Fees spring 2014 remedies

5

FRCP 54 (2)(B) – Motion for Attorneys Fees

(ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.
Counsel Fees spring 2014 remedies 6

N.J. Rule 4;42

 

(1) In a family action
(2) Out of a fund in court. (3) In a probate action, if probate is refused…

(4) In an action for the foreclosure of a mortgage, (rates specified)

(5) In an action to foreclose a tax

certificate

Counsel Fees spring 2014 remedies

7

N.J. Rule 4;42  (6) In an action upon a liability or indemnity policy of insurance, in favor of a successful claimant.  (7) As expressly provided by these rules with respect to any action, whether or not there is a fund in court.  (8) In all cases where attorney's fees are permitted by statute.

Counsel Fees spring 2014 remedies

8

Fee shifting and fees as damages
 •

42 USC 1988 and state analogs * Patent infringement 35 USC 285 (exceptional cases) Copyright 5 USC 505 (may to prevailing party) Common fund cases – class actions, bankruptcy, probate

As an element of damage
Counsel Fees spring 2014 remedies 9

Fee shifting and fees as damages  Statutes: e.g. fees barred in Veterans claims, limited (e.g. $200 in UI appeals), PD `pool attorneys ‘, 14B – NY, Federal panel fees, appointments by courts per Gideon v. Wainwright  Cap and review: Social security disability  Awarded by court: e.g. workers compensation

Counsel Fees spring 2014 remedies

10

Court Awarded Fees – state law

   

Chancery cases Common Funds Statutory fees Statutory Discrimination Cases Sanctions

Counsel Fees spring 2014 remedies

11

Fee shifting statutes

* ERISA 29 USC 1132: - by participant or

beneficiary – discretionary “some degree of success on the merits.”
- in collection action – mandatory * EAJA 28 USC 2412 – actions v. U.S. (non-tort) - Shall award fees to prevailing party unless U.S. was “substantially justified” - CAP - $125/hour + COLA
-

Counsel Fees spring 2014 remedies

12

EAJA 28 U.S.C. § 2412

Under the Equal Access to Justice Act, a court in a civil action against the United States shall “award to a prevailing party other than the United States fees and other expenses . . . incurred by that party” if the position of the United States was not “substantially justified.”

Counsel Fees spring 2014 remedies

13

Contingent fees
Lawyers working “on spec”

Counsel Fees spring 2014 remedies

14

Contingent Fees R. 1.5

Generally permitted


  

Must be written retention agreement
Basis of calculation must be stated Litigation expenses deducted or not Written accounting req’d

Counsel Fees spring 2014 remedies

15

Contingent Fees - generally
The norm for plaintiffs in PI cases, workers compensation, SS disability, subrogation claims, debt collection  Closely regulated in PI cases by statute and rule  Barred in - criminal defense - marriage dissolution & child support cases

Counsel Fees spring 2014 remedies 16

R. 1.5 (d) A lawyer shall not

Enter into an arrangement for, charge or collect: 1) any fee in a domestic relations matter, the payment of which is contingent on divorce or the amount of alimony or support or property settlement in lieu thereof 2) a contingent fee for representing a defendant in a criminal case
Counsel Fees spring 2014 remedies 17

R. 1.5 Contingent Fees Permitted
 

(c) in a writing signed by the client shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal
Counsel Fees spring 2014 remedies 18

R. 1.5 Contingent Fees Permitted
 

Expenses whether such expenses are to be deducted before or after the contingent fee is calculated In the event of loss must clearly notify the client of any expenses for which the client will be liable if the client does not prevail
Counsel Fees spring 2014 remedies 19

 

R. 1.5 Contingent Fees Permitted
 

Accounting the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination

Counsel Fees spring 2014 remedies

20

The criminal defense ban

 

In Commonwealth v. Facella, 679 N.E.2d 221, 226 (Mass. App. Ct. 1996) defendant was charged with armed assault with intent to murder the retainer agreement provided that defense counsel Beatrice would be paid an additional $ 15,000 if he negotiated a sentence of no more than ten years. He did so. Should such contracts be barred?
Counsel Fees spring 2014 remedies 21

Contingent Fees - New York NY CLS Jud § 474

 

PI and wrongful death claim contingent fees are set by each of the four Judicial Departments BUT Medical malpractice fees are set by § 474 Infant and guardian fees set by court

Counsel Fees spring 2014 remedies

22

SUPREME COURT RULES – 3rd JUDICIAL DEPT. ARTICLE 1. APPELLATE DIVISION SUBARTICLE B. ATTORNEYS NY CLS Sup Ct § 806.13 (a) (2007)

The receipt, retention or sharing of
contingent compensation in excess of

the schedule of fees shall constitute
the exaction of unreasonable and

unconscionable compensation

Counsel Fees spring 2014 remedies

23

SUPREME COURT RULES – 3rd JUDICIAL DEPT. ARTICLE 1. APPELLATE DIVISION SUBARTICLE B. ATTORNEYS NY CLS Sup Ct § 806.13 (a) (2007)

SCHEDULE A
(1) 50 per cent on the first $ 1,000 of the sum recovered,

(2) 40 per cent on the next $ 2,000 of the sum recovered,
(3) 35 per cent on the next $ 22,000 of the sum recovered, (4) 25 per cent on any amount over $ 25,000 of the sum recovered Counsel Fees spring 2014 remedies Extraordinary result may justify higher fee app. 24

SCHEDULE B

A percentage not exceeding

33 1/3 % of the [net or gross*] sum
recovered

No additional compensation because
of extraordinary circumstances may be sought
Counsel Fees spring 2014 remedies 25

How the fee is computed NYCRR 691.20
 


   


Net sum recovered after deducting expenses and disbursements for Filing fees Depositions Medical records Expert witnesses Investigative or other services UNLESS LAWYER ADVANCES COSTS
Counsel Fees spring 2014 remedies 26

How the fee is computed

Taxed costs and interest upon a judgment are part of the amount recovered

Counsel Fees spring 2014 remedies

27

How the fee is calculated

No deduction for liens, assignments or claims in favor of hospitals, for medical care and treatment by doctors and

nurses, or self-insurers or insurance
carriers.

Counsel Fees spring 2014 remedies

28

How the fee is calculated
 

  

Common liens Medicare Medicaid (and other public entitlement) Assignments of benefits Union-mgt benefit funds (ERISA) Workers compensation

Counsel Fees spring 2014 remedies

29

NY CLS Jud § 474-a Contingent fees in claims or actions for medical, dental or podiatric malpractice

30 % of the first $ 250,000 of the sum recovered; 25 % of the next $ 250,000 of the sum recovered;

20 % of the next $ 500,000 of the sum recovered;
15 % of the next $ 250,000 of the sum recovered; 10 % of any amount over $ 1,250,000 of the sum recovered.Counsel Fees spring 2014 remedies 30

NY CLS Jud § 474-a Extraordinary Circumstances

 

Trial judge has discretion to fix as reasonable compensation an amount greater than § 474-a - in extraordinary circumstances - without regard to the claimant's consent BUT not in excess of that provided by contract between attorney & client

Are such reductions in med mal cases warranted?
Counsel Fees spring 2014 remedies

31

NY Rules of the Appellate Courts § 691.20: Retainer and Closing Statements 2nd Judicial Department
    

Written retainers, etc. req’d in: personal injury property damage wrongful death condemnation or change of grade proceedings

Counsel Fees spring 2014 remedies

32

NY Rules of the Appellate Courts § 691.20 Retainer and Closing Statements 2nd Judicial Department

(1) Every attorney who accepts a retainer or enters into an agreement, express or implied, for compensation for services …whereby his compensation is to be …contingent in whole or in part upon successful prosecution or settlement Shall, within 30 days… sign personally and file with the Office of Court Administration of the State of New York a written statement of such retainer or agreement.
Counsel Fees spring 2014 remedies 33

NY Rules of the Appellate Courts § 691.20 Retainer and Closing Statements 2nd Judicial Department

(b) Closing statement; statement where no recovery. (1) A closing statement shall be filed in connection with every claim… in which a retainer statement is required, as follows: Every attorney upon receiving, retaining or sharing any [such] sum shall, within 15 days after such receipt, retention or sharing, sign personally and file with the Office of Court Administration and serve upon the client a closing statement
Counsel Fees spring 2014 remedies 34

NY Rules of the Appellate Courts § 691.20 Retainer and Closing Statements 2nd Judicial Department

Retainer agreement, under which attorney would receive [less than rules permit] was not enforceable due to failure to timely file.

Connors v. Wildstein (2 Dept. 2000)

Attorney was suspended from practice of law for one year .. For failing to prepare retainer statement for filing with Office of Court Administration in personal injury case and by failing to prepare closing statement Matter

of Laskorski (2 Dept. 1995)

Counsel Fees spring 2014 remedies

35

N.J. Court Rules, R. 1:21-7 Contingent fees

(c) In any [tort claim for damages] but excluding statutorily based discrimination and employment claims, and the client is not a subrogee, an attorney shall not contract for, charge, or collect a contingent fee in excess of the following limits

Counsel Fees spring 2014 remedies

36

N.J. Court Rules, R. 1:21-7 Contingent fees

(1) 33 1/3% on the first $ 500,000 recovered;

(2) 30% on the next $ 500,000 recovered;

(3) 25% on the next $ 500,000 recovered;

(4) 20% on the next $ 500,000 recovered; and

Counsel Fees spring 2014 remedies

37

N.J. Court Rules, R. 1:21-7 Contingent fees

25% in case of minors and mentally incapacitated persons if the case settles without trial

includes services rendered on any appeal or review proceeding or on any retrial, but this

shall not be deemed to require an attorney to
take an appeal
Counsel Fees spring 2014 remedies 38

N.J. Court Rules, R. 1:21-7 Contingent fees

(f) If at the conclusion of a matter an attorney considers the fee permitted by paragraph (c) to be inadequate, an application on written notice to the client may be made to the Assignment Judge for the hearing and determining of a reasonable fee in light of all the circumstances.
Counsel Fees spring 2014 remedies 39

Federal Tort Claims Act
Statutory contingent fee limits

Counsel Fees spring 2014 remedies

40

28 U.S.C. § 2678. Attorney fees; penalty

No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25% of any judgment or [settlement]

or in excess of 20% of any award, compromise, or settlement (at administrative adjustment stage] [28 USC 2672]
Counsel Fees spring 2014 remedies 41

28 U.S.C. § 2678. Attorney fees; penalty

Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be fined not more than $ 2,000 or imprisoned not more than one year, or both.

Counsel Fees spring 2014 remedies

42

What is a reasonable fee?
Lodestar Contingent fee enhancement

Counsel Fees spring 2014 remedies

43

NJ allows contingent fee enhancement

Walker v. Guiffre, A-72-10, the Court reinstates a $99,000 legal fee on the plaintiff's $650 recovery in a suit accusing Route 22 Nissan Inc. and other car dealerships of fraudulently inflating fees in sales contracts." In Humphries v. Powder Mill Shopping Plaza wheelchair access claim
Counsel Fees spring 2014 remedies 44

Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

The "lodestar" is "the product of reasonable hours times a reasonable rate" District Court declared that Dague's "risk of not prevailing was substantial" and that "absent an opportunity for enhancement, [Dague] would have faced substantial difficulty in obtaining counsel of reasonable skill and competence in this complicated field of law [Clean Water Act]." It concluded a 25% enhancement is appropriate, but anything more would be a windfall to the attorneys."
Counsel Fees spring 2014 remedies 45

Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

We see a number of reasons for concluding that no contingency enhancement whatever is compatible with the fee-shifting statutes at issue.

Counsel Fees spring 2014 remedies

46

Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

Just as the statutory language limiting fees to prevailing parties bars a prevailing plaintiff from recovering fees relating to claims on which he lost, so should it bar a prevailing plaintiff from recovering for the risk of loss.
Counsel Fees spring 2014 remedies 47

Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

To award a contingency enhancement under a fee-shifting statute would in effect pay for the attorney's time (or anticipated time) in cases where his client does not prevail.

Counsel Fees spring 2014 remedies

48

Not only fees, but attitudes shift City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992) JUSTICE SCALIA delivered the opinion of the Court.

An attorney operating on a contingency-fee basis pools the risks presented by his various cases: cases that turn out to be successful pay for the time he gambled on those that did not.

Gambling? Or entrepreneurial risk-taking?
Counsel Fees spring 2014 remedies

49

Rendine v. Pantzer, 141 NJ 292 (2005)

We are unpersuaded by Justice Scalia's suggestion in Dague, supra, that awarding contingency enhancement under a fee-shifting statute "would in effect pay for the attorney's time (or anticipated time) in cases where his client does not prevail." ...
Counsel Fees spring 2014 remedies 50

Rendine v. Pantzer, 141 NJ 292 (2005)

In our view the case for contingency enhancement has nothing to do with the amount of time lawyers invest in losing cases.

It rests on the desire to enable parties to compete for legal services in the private market.
Counsel Fees spring 2014 remedies 51

Rendine v. Pantzer, 141 NJ 292 (2005)

A more practical approach is that outlined in the Delaware Valley II dissent. A court's job is to determine 1) was the case was taken on a contingent basis? 2) was the attorney able to mitigate the risk of nonpayment in any way? 3) were other economic risks were aggravated by the contingency of payment?
Counsel Fees spring 2014 remedies 52

Rendine v. Pantzer, 141 NJ 292 (2005) “It is the actual risks or burdens that are borne by the lawyer or lawyers that determine whether an upward adjustment is called for.'“

483 U.S. at 747 (Blackmun, J., dissenting)
Counsel Fees spring 2014 remedies 53

Rendine v. Pantzer, 141 NJ 292 (2005)

We conclude that contingency enhancements in fee-shifting cases ordinarily should range between 5% and 50% of the lodestar fee, the enhancement in typical contingency cases should range between 20% and 35 % of the lodestar.

Counsel Fees spring 2014 remedies

54

Rendine v. Pantzer, 141 NJ 292 (2005)

Enhancements should never exceed 100%of the lodestar Enhancement of that size will be appropriate only in the rare and exceptional case in which - the risk of nonpayment has not been mitigated at all, i.e., where the "legal" risk constitutes "an economic disincentive independent of that created by the basic contingency in payment * [AND] the result achieved * * * is significant and of broad public interest.“
Delaware Valley II, 483 U.S. at 751, (Blackmun, J., Counsel Fees spring 2014 remedies dissenting)
55

Aggregate Litigation
Managing the conflicts among claimants and lawyers

Counsel Fees spring 2014 remedies

56

Deepwater Horizon – an outlier

Any common benefit Class Counsel fees and costs awarded by the Court will not be deducted from Class Members’ recoveries, but will be paid by BP in addition to other class benefits.

Counsel Fees spring 2014 remedies

57

Deepwater Horizon – an outlier

BP has agreed to pay for the cost of notice to class members and the costs of the Settlement Program administration. BP has agreed to create a $57 million fund, to be administered by the Claims Administrator, to promote tourism and the seafood industry in the Gulf Coast.
Counsel Fees spring 2014 remedies 58

BP Deepwater Horizon PSC Report Filed 11/07/11

6% reserve for common benefit work established

Counsel Fees spring 2014 remedies

59

Principal types of aggregate claims
   

Class actions (FRCP 23) - fairness hearings Single action with multiple claimants Quasi class actions/Consolidated case management

 

- state mass tort case management
- MDL -federal multi district litigation
Counsel Fees spring 2014 remedies 60

R. 1.8 (g) Conflicts – Aggregate Litigation

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless:

Counsel Fees spring 2014 remedies

61

Aggregate Litigation: Class Actions
Fees drawn from a common fund

Counsel Fees spring 2014 remedies

62

Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) – Class actions
 

p. 180

attorneys' fees from a "common fund“

judge-made exception to the "American Rule“
Judicial discretion lodestar method percentage of recovery method or some combination of the two
Counsel Fees spring 2014 remedies 63

   

Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) – Class actions

p. 180

Counsel for the class sought


Lodestar $ 1,863,838.75
Enhanced by risk multiplier (1.53)


= $ 2.85 million or 18.45 % of the fund
District court on remand.... allowed the

smallest possible multiplier of 1.01

Counsel Fees spring 2014 remedies

64

Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) – Class actions

p. 180

We review the district court's award of attorneys' fees deferentially plaintiff class is unrepresented in the issue of attorneys' fees court must jealously guard the interests of the class. court must also be careful to sustain the incentive for attorneys on an "inescapably contingent" basis
Counsel Fees spring 2014 remedies 65

Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) – Class actions

p. 180

The risk multiplier is an effort to mimic

market forces.

The district court… in essence found

that the attorneys for the class faced no
risk in taking on the case, that in the

end, they were assured of a paycheck.
We disagree.
Counsel Fees spring 2014 remedies 66

Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) – Class actions

p. 180

the benchmark in common fund cases is 20 % - 30 % Usual range 13 % - 20 % for funds of $ 51-$ 75 million 6-10 % range for funds of $ 75-$ 200 million the multiplier of 1.53 leads to attorneys' fees of $ 2.85 million about 18.5 % of the settlement fund
Counsel Fees spring 2014 remedies 67

Florin v. Nationsbank of Ga., N.A. (7th Cir. 1995) – Class actions

p. 180

the benchmark in common fund cases is 20 % - 30 % Usual range 13 % - 20 % for funds of $ 51-$ 75 million 6-10 % range for funds of $ 75-$ 200 million the multiplier of 1.53 leads to attorneys' fees of $ 2.85 million about 18.5 % of the settlement fund
Counsel Fees spring 2014 remedies 68

Aggregate Tort Litigation
Private agreement or judicial control?

Counsel Fees spring 2014 remedies

69

WTC Ground Zero cases

 

Judge Hellerstein refused to mark cases settled when the lawyers for City, contractors and plaintiffs presented their agreement. He ordered them to continue to trial, etc. He said that not enough money was going to plaintiffs and too much was going to lawyers. It’s a “quasi class action”, he said

Counsel Fees spring 2014 remedies

70

WTC Ground Zero cases

What should the lawyers do if they think
he is overreaching?

Did the Judge have the right to “approve”
or “disapprove” a private settlement?

Almost all the money is federal funds (WTC Captive) - does that make a difference?
Counsel Fees spring 2014 remedies 71

WTC Ground Zero cases

Plaintiffs lawyers: $30 Million in costs for 8
years, plus “tens of millions for staff, etc.”


Defense took 1,200 deps, spent $200 M
Clients signed standard NY retainer agreements providing 33 1/3% contingency * did Judge Hellerstein have the right to cut fees as he had threatened?
Counsel Fees spring 2014 remedies 72

R. 1.8 (g) Conflicts – Aggregate Litigation  each client gives informed consent, in a writing signed by the client.  The lawyer's disclosure shall include  the existence and nature of all the claims or pleas involved and  the participation of each person in the settlement  Does the WTC settlement honor these principles?
Counsel Fees spring 2014 remedies 73

Quaere

* are the plaintiffs adequately informed of the terms of the aggregate settlement under RPC 1.8 (g)? * do the opt outs have a realistic chance?

* will 95% take the settlement?

Counsel Fees spring 2014 remedies

74

Apportioning fees among lawyers in MDL litigation
  

Individually retained lawyers Lead counsel State vs. Federal litigation on parallel tracks

Counsel Fees spring 2014 remedies

75

Zyprexa

Judge Jack B. Weinstein

467 F. Supp. 2d 256 (EDNY 2006)

Counsel Fees spring 2014 remedies

76

Federalism: the state court problem
 


State-Federal Comity Conflicts of interest due to differing fee structures Equity Litigation misconduct - state court filings to evade MDL fee limits and common benefit assessments - filings of non-meritorious new claims
Counsel Fees spring 2014 remedies 77

Common benefit work by Plaitniff’s Steering committee 1
   

Discovery Bellwether trials Settlement negotiations 8000 cases settled Claims processing and payment procedures and implementation Resolving Medicare and Medicaid liens (agreement approved by all states and federal government)
Counsel Fees spring 2014 remedies 78

Attorneys fee structure

 

Capping fees 20% of recovery in smaller, lump-sum claims 35% of recovery in all other claims 1% hold-back from the gross settlement , plus interest on the escrow fund for Plaintiff Steering Committee I (PSC 1) PSC II – not set
Counsel Fees spring 2014 remedies 79

Common benefit fund purpose

Reimburse members of PSC I and other attorneys for the time and funds expended by them for the common benefit of all settling plaintiffs in

 

conduct of the litigation implementation of the settlement
Counsel Fees spring 2014 remedies 80

FRCP Rule 11

Provides for sanctions for litigation misconduct - costs to adverse party including attorney’s fees

Counsel Fees spring 2014 remedies

81

Sanctions under New York Law

Counsel Fees spring 2014 remedies

82

AWARDS OF COSTS AND IMPOSITION OF FINANCIAL SANCTIONS FOR FRIVOLOUS CONDUCT IN CIVIL LITIGATION - 22 NYCRR § 130-1.1

Costs and reasonable attorneys fees may be awarded TO a party injured by

frivolous litigation conduct of

Attorneys Parties
Counsel Fees spring 2014 remedies 83

AWARDS OF COSTS AND IMPOSITION OF FINANCIAL SANCTIONS FOR FRIVOLOUS CONDUCT IN CIVIL LITIGATION - 22 NYCRR § 130-1.1

Conduct is frivolous if: (1) completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
Counsel Fees spring 2014 remedies 84

AWARDS OF COSTS AND IMPOSITION OF FINANCIAL SANCTIONS FOR FRIVOLOUS CONDUCT IN CIVIL LITIGATION - 22 NYCRR § 130-1.1

(3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section.

Counsel Fees spring 2014 remedies

85

FRCP 11

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.

Counsel Fees spring 2014 remedies

86

FRCP 11


 

The sanction may include nonmonetary directives an order to pay a penalty into court an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
Counsel Fees spring 2014 remedies 87

Rule 11 FRCP - sanctions

As to Any paper a lawyer signs or advocates for the attorney certifies factual contentions have (or will have) evidentiary support denials of factual contentions are warranted on the evidence or are reasonably based on belief or a lack of information

Counsel Fees spring 2014 remedies

88

28 USC § 1927. Counsel’s liability for excessive costs

Any attorney ..who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

Counsel Fees spring 2014 remedies

89

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