I'll forthrightly state that, at the outset, I was dubious about this Ninth Circuit holding. But, in the end, the opinion by Judge Lasnik -- sitting by designation from the Western District of Washington -- probably persuades me.
There's a personal jurisdiction fight between the parties and the general counsel of the defendant submits an affidavit that contains misleading or inaccurate facts that says that the defendant has no contacts with the forum state. After some discovery, the plaintiffs figure this out and file a Rule 11 motion, which in turn results in the defendant withdrawing the affidavit. Since that withdrawal was within the 21-day safe harbor period, no sanctions under Rule 11 are permitted.
But the plaintiffs then ask for sanctions under 28 U.S.C. § 1927, which permits sanctions against “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously.” Textually, section 1927 applies. The general counsel (1) was "an attorney," (2) admitted to a "court of the United States" (the Supreme Court), and (3) he vexatiously and unreasonably multiplied the proceedings.
But come on. The affiant here was a fact witness. He wasn't acting as a lawyer. I'm confident that Section 1927 was intended to sanction lawyers, not witnesses. That's the lawyer's main argument on appeal, and the one the Ninth Circuit addresses today.
That argument is far from frivolous. I'm a lawyer. I definitely don't want to be subject to sanctions under Section 1927 whenever I happen to be a fact witness. That seems unfair, and not the purpose of the law.
Judge Lasnik nonetheless gives good arguments, in my view, for why we might well want to actually treat lawyers differently, and potentially subject them to sanctions even when they act as fact witnesses. I found this paragraph tolerably persuasive:
"Brumley’s proposed reading of § 1927—that an attorney must be acting “as an attorney” to be sanctioned—is debatable. Counsel for Brumley expressed concern that a lawyer admitted to conduct cases in a federal court who witnesses an accident might become subject to § 1927 sanctions if the lawyer submits a signed affidavit in federal court proceedings related to that accident. We note that independent of any laws or court rules, attorneys are bound by rules of professional conduct that impose duties on attorneys as a requirement of holding a law license. Those duties include the duty of candor to the tribunal. Judges are well aware of this duty and as a result may give more weight to, for example, a sworn affidavit signed and filed by an attorney. The essence of § 1927 is that when an attorney abuses the extra trust placed in them by a court, and thereby wastes a significant amount of the court’s time, that attorney may be sanctioned and, where appropriate, ordered to personally pay the excess costs, expenses, and attorneys’ fees traceable to the relevant conduct."
Ultimately, the Ninth Circuit holds that it need not wade into this dispute because the affiant here was "acting" as an attorney since he signed the affidavit in his role as general counsel for the defendant. I'm not entirely certain that's true, but okay. Arguable. It at least skirts the issue for now as to whether Congress really intended in Section 1927 that attorneys be held to a higher standard even when they are merely fact witnesses and participate in a role entirely unrelated to their status as an attorney.
I'm also not entirely convinced that the Ninth Circuit really needed to reach out and resolve this issue. It's undisputed that the attorney didn't make the "I wasn't acting as a lawyer" argument below, so it's forfeited. Seems to me the Ninth Circuit could have just booted the case on that basis alone. Sure, it's a legal issue, so the court has discretion to reach the merits if it wants. But I might have just been happy to resolve the issue on procedural forfeiture grounds and leave the bigger -- tougher -- question for another day.
Still. I was impressed with Judge Lasnik's ability to push me to a position that I was initially quite disinclined to support. Well done.
