Advisory Note – July 2018

The amendments to Rule 11, together with amendments to Rules 3, 4, 5(b) and 101 of the Maine Rules of Civil Procedure, are part of a package of simultaneous amendments to require parties who are represented by attorneys to serve pleadings and other papers electronically upon one another or by delivering copies pursuant to Rule 5(b)(1) following service of the summons and complaint under Rule 4. Parties who are not represented by an attorney may opt in to Electronic Service.

A more detailed description of Electronic Service and the procedures for complying with its requirements is stated in the Advisory Note to Rule 5.

The requirements and procedures of Electronic Service pertain only to the service of pleadings and documents among parties in a court action. Electronic Service does not alter, affect or in any way relate to a party’s filing requirements with any court or clerk’s office.

Advisory Committee’s Notes 1983

Rule 11 is amended to resolve problems that have become apparent under both the Maine rule and its federal equivalent. The changes are adapted from the June 1981 Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, _____ F.R.D. _____ (1981).

The Maine rule has not been effective in providing a sanction against attorneys who may violate its provisions, because it follows the language of the federal rule in authorizing “appropriate disciplinary action” for a willful violation by an attorney. Maine trial judges, noting that disciplinary power rests in the Board of Bar Overseers and the Supreme Judicial Court, have felt themselves unable to impose sanctions in the nature of professional discipline. In the federal courts, even though discipline is the province of the District Court, Rule 11 has been ineffective because of confusion as to the circumstances that should trigger action under it, the standard of conduct expected of attorneys, and the range of available and appropriate sanctions. See Federal Advisory Committee’s Notes to June 1981 Proposed Amendments to Rules 7(b)(3), 11, _____ F.R.D. _____ (1981), citing 5 Wright and Miller, Federal Practice and Procedure §1334 (1969). These problems also exist under the identical language of the Maine rule.

The amendment seeks to solve these problems by shifting the focus from attorney discipline to a broad range of sanctions similar to those applicable to discovery orders under Rule 37. Because of this shift in focus, the rule also subjects parties who sign pleadings, whether in conjunction with an attorney or acting pro se, to its obligations. In construing the obligation of a party, the courts will of course not charge him with an attorney’s knowledge of the law in evaluating the probable validity of his claim or defense. To eliminate any possible doubt, the amendment also expressly states that the rule applies to motions as well as to pleadings. This provision makes explicit the intention of Rule 7(b)(2) to subject motions to the sanctions of Rule 11. See 1 Field, McKusick and Wroth, Maine Civil Practice §7.2 (2d ed. 1970).

The amendment eliminates language in the prior rule referring to “sham and false” pleadings and to “scandalous or indecent matter.” To the extent that these faults in a pleading indicate, that it is violative of the rule, sanctions will now be appropriate against the attorney or party. To the extent that the faults go to the merits or the content of the pleading, they are properly the basis for motions to dismiss under Rules 12(b), (c), or 56 or a motion to strike under Rule 12(f). See

Federal Advisory Committee’s Note to June 1981 Proposed Amendment to Rule 11, supra.

In lieu of these provisions, the amended rule provided simply that an unsigned pleading or motion may not be accepted for filing and that a pleading or motion signed with intent to defeat the purpose of the rule may give rise to sanctions against the attorney or party who signed it or, in a proper case, against a party represented by the signing attorney. The amended rule does not delineate all the appropriate sanctions but makes clear that a proper sanction could be the costs of responding to the improper pleading or motion including attorney fees. The intent of the amendment is to give the court great flexibility in determining the nature and severity of the sanctions and the individual upon whom they are to be imposed, according to the circumstances of the case. This flexibility will allow the court to deal fairly and reasonably with situations involving pro se parties. See Federal Advisory Committee’s Note to June 1981 Proposed Amendment to Rule 11, supra.

Advisory Committee’s Notes July 1, 2001

The Court has amended the Maine Bar Rules and Rules 5, 11 and 89 of the Maine Rules of Civil Procedure to permit attorneys to assist a pro se litigant on a limited basis without undertaking the full representation of the client on all issues related to the legal matter for which the attorney is engaged. By these amendments, the Court has sought to enlarge access to justice in Maine courts.

Rule 11(a) is amended to make its provisions subject to a new subdivision (b). New Rule 11(b) permits attorneys to file a limited appearance on behalf of an otherwise unrepresented litigant. The effect of the limited appearance is to permit the attorney to represent the client on one or more matters in the case but not for all matters. The attorney need not file a motion to withdraw unless the attorney seeks to withdraw from the limited appearance itself. The attorney is responsible under Rule 11(a) only for those filings signed by the attorney.

The benefits of a Rule 11(b) are obtained only by the filing of a limited appearance identified as such. The limited appearance should clearly state the scope of the limited representation. Any doubt about the scope of the appearance should be resolved in a manner that promotes the interests of justice and those of the client and opposing party. As to those filings signed by the attorney, Rule 11(a) applies fully and the attorney is deemed to have entered an appearance for the purposes of the filing, even if the filing is beyond the apparent scope of the limited appearance.

A limited appearance is created by the Maine Supreme Judicial Court’s rulemaking authority. Consequently, counsel in cases removed to the United States District Court should be aware that limited appearances may not be recognized in the federal forum. See, e.g., Order, Donovan v. State of Maine, Civil No. 00-268-P-H (February 16, 2001) (striking partial objection to recommended decision made through purported “limited appearance”); McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (noting trial judge not required to allow hybrid representation); U.S. v. Campbell, 61 F.3d 976, 981 (1st Cir. 1982) (same); O’Reilly v. New York Times Co., 692 F.2d 863, 868 (2d Cir. 1982) (same; civil case).

Advisory Notes – 2004

The United States District Court for the District of Maine requires electronic filing of documents. As a result, those courts accept electronic representations of signatures in lieu of actual signatures. M.R. Civ. P. 11(c) is added to state that when documents originally filed electronically in the federal court are transferred to the state courts, they shall be deemed to be signed for purposes of M.R. Civ. P. 11, if the document is signed or the signature of the document is indicated in a manner that is acceptable for filing in the court from which the document is transferred.

Annotations:

Rule 11: Disqualification. Lindquist v. Bangor Mental Health Inst., 2001 ME 72, 7-11.