COMMENT

Reporter’s Notes to Rule 11: 1. With minor changes, Rule 11 is substantially identical to FRCP 11. Omitted from Rule 11 is the provision in the Federal Rule which abolished the old equity rule as to quantum of proof required where an answer is under oath. Arkansas has not followed this rule; therefore, there is no need to have a provision which abolished it.

2. Superseded Ark. Stat. Ann. § 27-1105 (Repl. 1962) required that a complaint, answer and reply be verified. Under Rule 11, only those few pleadings and motions specifically required by these rules to be verified need be verified. Under this and the Federal Rule, verification of pleadings is the exception and not the rule.

3. Under FRCP 11, the signature of an attorney to a pleading amounts to an affirmation that he believes the pleading to have merit. Russo v. Sofia Bros., Inc., 2 F.R.D. 1 (D.C. N.Y., 1941 ). It is a breach of an attorney’s duty to file pleadings which create issues that counsel does not believe to have basis in fact. Arena v. Luckenbach Steamship Co., 279 F.2d 186 (C.C.A. 1 st, 1960).

4. Omitted from Rule 11 are the words “as sham and false” found in FRCP 11. These words do not add any particular import to the rule, hence their omission. Also, the word “served” as used in FRCP 11 has been deleted and the word “filed” substituted therefor.

Addition to Reporter’s Note, 1986 Amendment: Rule 11 has been completely rewritten. It is now substantially identical to Federal Rule 11, as amended in 1983. As adopted in 1979, Arkansas Rule 11 was virtually identical to its federal counterpart, providing for the striking of pleadings and imposition of disciplinary sanctions to check abuses in the signing of pleadings. Experience under original Rule 11 in the federal courts demonstrated that the rule was not effective in deterring abuses, and confusion existed as to the circumstances that could trigger striking a pleading or taking disciplinary action, the standard of conduct expected of attorneys who sign pleadings and other papers, and the range of available sanctions. The amended rule is intended to reduce the reluctance of the courts to impose sanctions by emphasizing the responsibilities of the attorney and reinforcing those obligations by the imposition of sanctions.

As amended, Rule 11 expressly applied to pleadings, motions, and other papers. It therefore includes discovery requests, discovery motions, and any other paper that must be filed and served under Rule 5, Ark. R. Civ. P. Moreover, amended Rule 11 provides that, in addition to disciplinary sanctions, the trial judge may impose other sanctions upon an offending attorney, including a reasonable attorney’s fee for the opposing party. The assessment of attorney’s fees for violation of procedural rules is currently found in other Rules of Civil Procedure, e.g., Rules 37(a)-(d), 56(g), and 26(b) & (c).

Amended Rule 11 states that the signature of an attorney constitutes a certificate by him “that to the best of his knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” This language is substantially stronger than in the former rule. In addition, the recently adopted Arkansas Rules of Professional Conduct emphasize that a lawyer may not ethically bring or defend a proceeding or an issue unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. See Rule 3.1, Arkansas Rules of Professional Conduct.

Under the former version of Rule 11, the signature of an attorney certified that the suit or motion was not interposed for purposes of delay. The new rule is broader in stating that the pleading, motion or other paper “is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” This provision is consistent with the newly adopted ethical rules. For example, Rule 3.2 of the Arkansas Rules of Professional Conduct provides that a lawyer “shall make reasonable efforts to expedite litigation consistent with the interest of the client.”

Addition to Reporter’s Notes, 1997 Amendment: The rule has been amended by designating the former text as subdivision (a) and by adding new subdivision (b), which is based [on] Rule 11(c) (1) of the Federal Rules of Civil Procedure, as amended in 1993. In addition, the second sentence of subdivision (a) has been revised to require a party not represented by counsel to provide his telephone number, if any, along with his address. New subdivision (b) provides that requests for sanctions must be made as a separate motion, rather than simply be included as an additional prayer for relief in another motion. The motion for sanctions is not to be filed until at least 21 days, or other such period as the court may set, after being served. If the alleged violation is corrected during this period, the motion should not be filed with the court. This provision is intended to provide a type of “safe harbor” against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party’s motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation.

To emphasize the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the new subdivision provides that the “safe harbor” period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a letter or telephone call, of a potential violation before proceeding to prepare and serve a Rule 11 motion.

Addition to Reporter’s Notes, 2008 Amendment: Subdivision (a) has been amended by adding a new element to the certifications made by a pro se party or an attorney when that person signs a pleading, motion, or other paper. The attorney or party is now also certifying compliance with Administrative Order 19’s mandate for redaction of necessary and relevant confidential information in the case record being filed. The incorporation of Administrative Order 19’s mandate here gives the circuit court a ready method for enforcing this mandate.

Addition to Reporter’s Notes (2015 amendment): The amendment reorganizes and clarifies the rule. Several revisions are based on language in Ark. R. App. P.-Civ. 11, which applies when frivolous appeals are taken or other misconduct occurs at the appellate level. Other changes are based on Fed. R. Civ. P. 11, but overall this rule differs significantly from its federal counterpart.

With the adoption of these revisions, section 21 of the Civil Justice Reform Act of 2003, codified at Ark. Code Ann. § 16-114-209, is superseded pursuant to Ark. Code Ann. § 16-11-301. The Supreme Court invalidated a portion of the statute in Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415(2007).

Subdivision (b) of the revised rule, which describes the certification made by the person who signs a pleading, motion, or paper, does not substantially change current law. It is based on the federal rule but modified to reflect the requirement of fact pleading under the Arkansas rules. Also, subsection (b)(5) makes plain that an attorney or a party certifies that he or she has consulted with and obtained an opinion from an expert, or learned the opinion of an expert in discovery, as to the reasonableness of a claim or affirmative defense, which may only be established, in whole or in part, by expert testimony. This provision replaces the affidavit requirement for medical injury cases invalidated in Summerville v. Thrower, supra, but is not limited to cases of that type.

As under former Rule 11(a), subdivision (c)(1) requires the trial court to impose “an appropriate sanction” upon finding that the rule has been violated. Subdivision (c)(2) sets out a non-exclusive list of seven sanctions, six of which are identical or analogous to those in Ark. R. App. P.-Civ. 11(c). The other sanction, referring counsel to the Committee on Professional Conduct, is clearly within the power of the trial court. See Ligon v. Stilley, 2010 Ark. 418, 371 S.W.3d 615. The introductory clause in subdivision (c)(2) is taken from Ark. R. App. P.-Civ. 11(c) and does not limit a sanction to that sufficient to serve as a deterrent. Compare Fed. R. Civ. P. 11(c)(4) (sanction “must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated”).

In Crockett & Brown v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995), the Supreme Court held that an order imposing monetary sanctions under Rule 11 must explain the basis for the trial court’s decision. This requirement, the court said, is necessary for effective judicial review. Id. at 159, 901 S.W.2d at 830. Because this rationale applies whether the sanction is monetary or nonmonetary, subdivision (c)(3) requires an explanation regardless of the sanction imposed. It also leaves intact the additional requirement from Crockett & Brown that the order must explain the manner by which the amount of a monetary sanction is determined. Id. at 159, 901 S.W.2d at 830-31 (listing the factors to be considered).

Under former Rule 11(a), the trial court could act “upon its own initiative” to impose sanctions, without waiting for a motion. However, the rule was silent as to the appropriate procedure. Subdivision (c)(6), which is based on Ark. R. App. P.-Civ. 11(d), fills this gap. See also Fed. R. Civ. P. 11(c)(3).

Reporter’s Notes (2017): Subdivision (b) was amended to add, “Except as provided in Rule 87 of these rules, ” upon adoption of Rule 87.

Reporter’s Notes (2018 Amendment): Rule 11(a) was amended to delete references to addresses. Addresses and other contact information that are required to be stated in pleadings, motions and other papers are more appropriately addressed in Rule 10. See Ark. R. Civ. P. 10(a).