TITLE SIX — SUPPLEMENTARY PROCEEDINGS; SPECIAL PROCEEDINGS; SUPPLEMENTARY RULES
Rule 48. Sanctions
General. A wilful violation by counsel of the provisions of these rules or of an order issued pursuant to these rules shall subject counsel to such sanctions as the court shall deem appropriate, including citation for contempt or the imposition of costs or a fine.
Persons Subject to This Rule. This rule applies to counsel for the defendant, to a prosecutor, to any other attorney appearing in the proceeding, and to a party appearing without counsel. A sanction imposed upon counsel shall not be visited upon counsel’s client, and a sanction imposed upon a party shall not be imposed upon counsel, unless the court finds that each is responsible for the conduct.
Conduct Sanctionable. In addition to a wilful violation of these rules or of an order, the court may sanction:
The presentation of a filing, motion, or contention for an improper purpose, including harassment, the causing of unnecessary delay, and the needless increase in the cost of the proceeding;
A legal contention unwarranted by existing law and unsupported by a nonfrivolous argument for extending, modifying, or reversing it, or for establishing new law;
A factual contention advanced without evidentiary support, or a denial of a factual contention known to be true;
A misrepresentation to the court, whether of fact, of the record, or of the law;
Failure to appear at a proceeding of which the person had notice, and failure to be prepared to proceed;
Failure to comply with a scheduling order, a discovery order, or a certificate of compliance obligation under Rule 14;
The disclosure of a sealed matter, of the proceedings of a grand jury, or of material protected by an order entered under Rule 14(a)(6);
Transmission of a filing through the programmatic channel of the electronic filing system by a person who is not a party, counsel of record, or staff of the court, or the ratification of such a filing by a person lacking authority to make it; and
Abandonment of a representation, or a failure to act as counsel of record, while the person remains counsel of record.
Procedure. No sanction shall be imposed under this rule except upon notice and an opportunity to be heard.
Notice. The notice shall describe the specific conduct alleged, identify the rule or order alleged to have been violated, and state the sanction under consideration.
On the Court’s Initiative. Where the court proceeds on its own initiative, the notice shall be given by an order to show cause, entered upon the docket and served.
On Motion. Where a party seeks a sanction, the motion shall be in writing, shall describe the conduct with particularity, and shall be supported by an affidavit as Rule 13(a)(2) requires.
Opportunity to Correct. A motion under subdivision (4)(c) directed to a filing, contention, or allegation shall be served upon the person against whom it is directed and shall not be filed until forty-eight (48) hours after service. The motion shall not be filed if within that period the challenged filing, contention, or allegation is withdrawn or appropriately corrected. This subdivision does not apply where the court proceeds on its own initiative, nor to conduct which cannot be corrected.
Hearing. The person against whom a sanction is sought shall be afforded an opportunity to respond in writing and to be heard in the proceeding communications, not less than twenty-four (24) hours after notice, unless the person waives the period. Where the sanction under consideration includes confinement, the proceeding shall be conducted as a contempt under Rule 43(11).
Time. A motion under this rule shall be made promptly after the conduct becomes known and, absent good cause, not later than the entry of judgment. The court may proceed on its own initiative at any time while it retains jurisdiction.
Sanctions Available. Upon a finding that this rule has been violated the court may impose one or more of the following, proportioned to the offense as Const. art. V § 10 requires and no more severe than is necessary to deter a repetition of the conduct:
A reprimand, on the record or in a written order;
An order directing compliance, upon terms;
An order that a filing be given no effect and disregarded by the court;
The payment of the reasonable expenses, including attorney’s fees, caused by the conduct;
The assessment of the costs occasioned by a continuance or by a proceeding rendered necessary by the conduct;
A fine payable to the court;
The exclusion of evidence or the preclusion of a witness, subject to Rule 14(b)(3) and to subdivision (6) of this rule;
The revocation of permission granted to a law student or other person to appear in the proceeding;
A referral to the Board of Legal Ethics under subdivision (7).
Limits.
The Record Is Not Altered. An order that a filing be given no effect does not remove it from the record. The court shall not direct the clerk to delete, alter, or withdraw a filing or a document, the record of the electronic filing system being immutable.
The Defendant’s Rights. No sanction shall deprive the defendant of the assistance of counsel, of the right to present a defense, of the right to testify, or of the right to a fair trial. Where a sanction would have that effect, the court shall impose a different sanction.
Dismissal. The court shall not dismiss a charge as a sanction under this rule. Dismissal is granted only as Rule 13(c) or Rule 16 provides.
Wilfulness. A sanction under subdivision (1) requires a finding of wilfulness. A sanction under subdivision (3) requires a finding that the person knew or reasonably should have known of the impropriety of the conduct.
Ability to Pay. Before imposing a monetary sanction the court shall consider the person’s ability to pay, and shall not impose a monetary sanction upon appointed counsel or upon a self-represented indigent defendant where it would impair the representation or the defense.
Good Faith. No monetary sanction shall be imposed where the contention was presented in good faith as an argument for the extension, modification, or reversal of existing law, or where counsel acted in good faith upon the representations of the client as to the facts.
Referral to the Board of Legal Ethics.
When Made. The court may refer the conduct of an attorney to the Board of Legal Ethics, which establishes ethical codes and conduct regulations and enforces ethical standards under 3 R. Stat. § 151.201, and which maintains a reporting system for attorney misconduct under 3 R. Stat. § 151.203. The court shall make a referral where it finds a knowing misrepresentation to the court, a knowing violation of an order protecting material or a sealed matter, or conduct which would constitute a violation of a state statute.
Form. A referral shall be in writing, shall identify the attorney by username and State Bar license number, shall describe the conduct found, and shall be accompanied by the order imposing or declining a sanction and the relevant portions of the record.
Referral Is Not Discipline. A referral is not a disciplinary action and does not suspend, condition, or impair the attorney’s standing. Prior to disciplinary action involving disbarment, suspension for cause, public reprimand, monetary sanction, or admonition, the Board of Legal Ethics shall submit a disciplinary hearing before the Supreme Court where the attorney may present a defense, as 3 R. Stat. § 151.204 provides. The Supreme Court is authorized to consider the disciplinary action of an attorney on its own motion, as 3 R. Stat. § 151.204(a) provides.
Limits of Discipline. A member of the bar may only be disciplined before the Supreme Court when found to be in violation of the state rules of professional conduct, or when found to be in violation of a state statute, as 3 R. Stat. § 151.205 provides. No court other than the Supreme Court shall suspend or disbar an attorney, and no sanction under this rule shall purport to do so.
Cumulative. A sanction under this rule and a referral under this subdivision are cumulative, and neither bars the other.
Record Required. An order imposing a sanction shall be in writing and shall be entered upon the docket. It shall recite:
The conduct found, with the date and the place of it;
The rule, order, or duty violated;
The notice given and the opportunity to be heard afforded, and the substance of the response;
The finding of wilfulness or of knowledge where the sanction requires it;
The sanction imposed and the reasons for it;
For a monetary sanction, the computation of the amount and the findings as to the ability to pay; and
Whether a referral under subdivision (7) has been made.
An order declining to impose a sanction need not state reasons. The order and the record of the proceeding upon it constitute the record for review.
Counsel of Record. An attorney remains subject to this rule notwithstanding the termination of the representation, as to conduct occurring while the attorney was of record. An attorney remains counsel of record, and remains subject to every duty of counsel of record, until the electronic filing system records the severance of the representation. The filing of a notice of withdrawal does not of itself sever the representation.
Government Counsel. This rule applies to a prosecutor and to counsel appearing for the State. A monetary sanction imposed upon such counsel is personal to that counsel unless the court orders that it be paid by the office which employs the counsel.
Relationship to Other Rules. This rule is cumulative and is not exclusive. Rule 14(b)(3) governs sanctions for non-compliance with discovery. Rule 43 governs criminal contempt. Rid. R. Civ. P. 53 governs civil contempt. Nothing in this rule limits the inherent authority of the court to control the proceedings before it, or the disciplinary authority of the Supreme Court over attorneys at law under Const. art. V § 3.