On July 14, 2023, the District Court for Arizona issued an order denying Alan Dershowitz’ Application for an Order to Show Cause. The effect of this order is that Mr. Dershowitz was sanctioned by the district court for signing pleadings in the case captioned Kari Lake, et al. v. Adrian Fontes. No. 22-cv-00677-PHX-JJT. The plaintiff is a former candidate for governor of Arizona. The defendants are Maricopa county election officials.
The procedural history of the lawsuit is complicated. In April 2022, Lake filed suit against Maricopa County election officials to prohibit the use of electronic voting machines. The Court dismissed the case on August 22, 2022. Lake v. Hobbs, 623 F.Supp. 3d 1015 (D. Ariz. 2022). The Defendants moved for sanctions under Rule 11(b)(3). They “argued that Plaintiffs and their counsel made false allegations about Arizona elections in violation of Rule 11(b)(3) and brought this case for the improper purpose of ‘sowing doubts about the reliability and trustworthiness of elections for own financial and political benefit’ in violation of Rule 11(b)(1). Defendants further argued that the lawyers violated Rules 11(b)(2) and (3) and 28 U.S.C. § 1927. After briefing the court granted the motion and held that sanctions were warranted under Rule 11 and Section 1927. Dershowitz then filed an Application for Order to Show Cause to order the Maricopa Defendants to “show cause as to why an award of sanctions should be entered against Mr. Dershowitz personally or his consulting firm.” Dershowitz argued that his role in the matter was very limited and noted that he signed the complaint and first amended complaint as “of counsel.” Dershowitz argued that the words “of counsel” meant that his involvement was too limited for him to be sanctioned.
On May 20, 2022, the Maricopa Defendants sent Dershowitz and the other lawyers for Kari Lake a safe-harbor letter advising them that the Defendants believed the lawsuit was frivolous.
The District Court rejected Dershowitz’s argument that he did not violate Rule 11. To be sanctioned under Rule 11, the lawyer had to have signed the pleading. Here, Dershowitz signed both the original complaint and the amended complaint. By signing a complaint, the lawyer certifies that the filing is “not being presented for an improper purpose” and that the “legal contentions are warranted by existing law or by a non frivolous argument for extending, modifying, or reversing existing law or for establishing new law” and “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Once the lawyer signs the pleading, Rule 11 applies even if the lawyer later withdraws from the case.
The District Court rejected the argument that Dershowitz had very limited involvement in the case because Dershowitz did sign the complaint and the amended complaint. The Court also rejected Dershowitz’s argument that he was listed as “of counsel” on the Complaint. “A contrary ruling here could diminish the significance of attorney signatures and cause courts to question whether they can be relied upon with confidence. If would offer safe harbor to attorneys who designate themselves ‘of counsel’ no matter the inadequacy of the filings they sign.” p. 23.
“Failing to impose meaningful sanctions here might very well encourage others to follow suit by lending their credibility to documents filed in court without facing any real consequence if their certifications prove hollow or incomplete. The need for general deterrence is therefore significant.” p. 25.
The Court upheld the Rule 11 sanctions and the 28 U.S.C. §1927 sanctions against Dershowitz. Because of his limited involvement, the court held that Dershowitz would only be held responsible for 10% of the attorney fee award in favor of the Defendants. Dershowitz has the right to appeal the decision and the Ninth Circuit may view matters differently.
Comment: the opinion is thoughtful and well-written. Generally, sanctions cases come down to a number of factors. In this case, the Defendants warned the lawyers that Defendants believed the lawsuit was frivolous and the lawyers did not heed those warnings. Additionally, I agree with the Court’s holding that listing a lawyer as “of counsel” should not give that lawyer a defense to sanctions litigation. The opinion also recognizes the limited role that Dershowitz played in the litigation and it reduces his portion of the attorney fee award. Increasingly, courts and attorney disciplinary bodies have been highly unsympathetic to lawyers who made false allegations about voting machines and the conduct of recent elections. Courts may regard these lawsuits as a threat to the fabric of democracy. Numerous lawyers for former President Trump have been sanctioned by courts and subjected to attorney disciplinary investigations.
Before you sign a complaint, consider whether you have a factual basis to claim that the allegations in the complaint are true. If you do not have any such basis, do not sign. Ask yourself “Is there evidence that voting machines miscount votes or favor candidates of one party over another party?” Is the evidence credible or is it merely conjecture?