I have a different perspective than both Judge Gould (who authors the majority opinion) and Judge Bumatay (who authors the dissent) in this one.
I agree with Judge Gould that Alan Dershowitz signed a paper -- a complaint -- that contained frivolous allegations. But he signed that complaint as "of counsel" (though he signed a later frivolous motion containing similar claims as "counsel" for the party, which he claims was "a mistake") for the party.
Dershowitz asserts that he was only responsible for a particular paragraph (paragraph eight) of that complaint, so he couldn't be sanctioned for anything else. Is he right?
Judge Gould says that he could be sanctioned for the whole thing, but nonetheless reverses the sanctions here because before today's opinion, the ability to sanction lawyers who are "of counsel" was unclear. Judge Bumatay agrees with the reversal of sanctions, but thinks that "of counsel" lawyers should be subject to more lax standards even prospectively.
I disagree.
To me, if you sign a complaint (or any other filing, for that matter), you're signing the whole thing, unless you expressly say otherwise. Period. Doesn't matter if you're a partner, associate, of counsel, or whatever. If you sign it in toto, you're responsible for whole thing. You're not permitted to retrospectively argue that you were only signing it with respect to a particular portion.
By signing the complaint, Dershowitz obtained advantages both for himself and for his client. He got the advantage of being a designated attorney in a high-profile election challenge. His client got the advantage of having a big name attached to his pleading that attested to its seriousness.
If Dershowitz had signed this pleading and said "But I'm only attesting to the validity of Paragraph 8," both he and his clients wouldn't have obtained those advantages. And the other side would know that Dershowitz wasn't responsible for -- and couldn't be sanctioned -- for anything else.
But Dershowitz deliberately didn't do that. He signed the whole thing, without exception or caveat.
My rule, both prospectively and otherwise, would be this:
Anyone who signs a paper under Rule 11, whatever their role, is responsible for the entire paper unless somewhere in their signature they represent to the Court that they are only certifying a specified portion of that paper.
That's what I've always thought the rule was. That's what I continue to think the rule should be.
If I sign a public petition, or an amicus brief, or anything else, I'm singing the whole thing, and I don't sign it if there's something in it that's flatly untrue. What's true there is equally true -- if not more so -- for filings in federal court. If a Ninth Circuit judge puts their signature on an opinion, that's a sign that they agree to the whole thing. If they don't, they say so at the time, in a concurrence or otherwise. It's wrong -- as well as fundamentally unfair -- for someone to be able to retrospectively say "Oh, well, yeah, that's my signature at the bottom, but I only meant to sign for part of it -- the part to which you don't object." That's not the way the world works, nor should federal court work that way.
I've been "of counsel" to plenty of things. I'm more than happy to follow the proposed rule I advance herein.
So should everyone. Signatures are signatures. Lawyers are lawyers. You either mean what you sign or you say the parts to which you don't mean. Period.
