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Westfall v. Rust International11/5/1992
f New York, 762 F2d 243, 253-54 (2d Cir 1985), cert den 484 U.S. 918 (1987), stated:
"Prior to the 1983 amendment [to the rule], the rule spoke in plainly subjective terms: An attorney's certification of a pleading was an assertion that 'to the best of his knowledge, information, and belief, there good ground to support it.' The rule, therefore, contemplated sanctions only where
there was a showing of bad faith, and the only proper inquiry was the subjective belief of the attorney at the time the pleading was signed.
"The addition of the words 'formed after a reasonable inquiry' demand that we revise our inquiry. No longer is it enough for an attorney to claim that he acted in good faith, or that he personally was unaware of the groundless nature of an argument or claim. * * * Simply put, subjective good faith no longer provides the safe harbor it once did.
"* * *
"* * * e hold that a showing of subjective bad faith is no longer required to trigger the sanctions imposed by the rule. Rather, the sanctions shall be imposed against an attorney and/or his client when it appears that a pleading has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading 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." (Citations omitted; footnote omitted; emphasis in original.)
See also Business Guides v. Chromatic Com. Enterprises, 892 F2d 802, 808 (9th Cir 1989) (federal circuit courts "have repeatedly emphasized that amended Rule 11 imposes an objective standard of conduct" (emphasis in original)), aff'd 498 U.S. 533, 111 S Ct 922, 112 L Ed 2d 1140 (1991); Aetna Life Ins. Co. v. Alla Medical Services, Inc., 855 F2d 1470, 1475-76 (9th Cir 1988) (lawyer can violate Rule 11 by filing "frivolous" paper even though not done for an improper purpose).
The Court of Appeals correctly concluded -- in reliance on interpretations of FRCP 11 -- that the imposition of sanctions under ORS 656.390 for a "frivolous" appeal does not depend on the subjective intent of the lawyer charged with filing the frivolous appeal. Westfall V, supra, 111 Or App at 292. However, the definition announced by the Court of Appeals in Westfall V is lacking in two respects. First, the court equated the term "meritless," which this court defined in Mattiza v. Foster, supra, with the term "frivolous" in ORS 656.390, even though the wording and structure of ORS 656.390 and ORS 20.105(1) differ considerably. See ante note 1 (quoting ORS 656.390) and note 2 (quoting ORS 20.105(1)). Second, the court's definition does not expressly allow for a
good faith argument for the extension, modification, or reversal of existing law. We hold that an appeal is "frivolous" within the meaning of ORS 656.390 if every argument on appeal is one that a reasonable lawyer would know is not well grounded in fact, or that a reasonable lawyer would know is not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.
Having established that standard, we turn to the question whether the arguments presented to the Court of Appeals in claimant's petition for judicial review of the Board's order permitted the court to find that the appeal was frivolous. Westfall II, supra, 104 Or App 132. That is, we ask whether every argument made by cla
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