Kari Lake v. Bill Gates

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KARI LAKE; MARK FINCHEM, No. 23-16023

Plaintiffs, D.C. No. 2:22-cv-

00677-JJT

and

ALAN M. DERSHOWITZ, Counsel OPINION

for Plaintiffs,

Appellant,

v.

BILL GATES, as a member of the

Maricopa County Board of

Supervisors; CLINT HICKMAN, as a

member of the Maricopa County

Board of Supervisors; JACK

SELLERS, as a member of the

Maricopa County Board of

Supervisors; THOMAS GALVIN, as a

member of the Maricopa County

Board of Supervisors; STEVE

GALLARDO, as a member of the

Maricopa County Board of

Supervisors,

Defendants-Appellees,

2 LAKE V. GATES

and

ADRIAN FONTES, Arizona Secretary

of State; MARICOPA COUNTY

BOARD OF SUPERVISORS; REX

SCOTT, as a member of the Pima

County Board of Supervisors; MATT

HEINZ, as a member of the Pima

County Board of Supervisors;

SHARON BRONSON, as a member

of the Pima County Board of

Supervisors; STEVE CHRISTY, as a

member of the Pima County Board of

Supervisors; ADELITA GRIJALVA,

as a member of the Pima County

Board of Supervisors; PIMA

COUNTY BOARD OF

SUPERVISORS,

Defendants.

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted September 11, 2024

San Francisco, California

Filed March 14, 2025

Before: Kim McLane Wardlaw, Ronald M. Gould, and

Patrick J. Bumatay, Circuit Judges.

LAKE V. GATES 3

Opinion by Judge Gould;

Concurrence by Judge Bumatay

SUMMARY *

Attorney Sanctions

The panel affirmed the district court’s holding that of-

counsel attorneys may be sanctioned under Fed. R. Civ. P.

11, but reversed the district court’s imposition of sanctions

on of-counsel attorney for plaintiffs, Alan Dershowitz, in a

case concerning Arizona’s voting system.

The panel affirmed the district court’s holding that of-

counsel attorneys may be sanctioned under Rule 11 if they

sign a pleading without a reasonable basis to believe that the

pleadings are not frivolous and are based on facts. The panel

rejected Dershowitz’s contention that the district court’s

imposition of sanctions violated the First Amendment. The

district court did not impose sanctions for the improper

purpose of silencing speech, but for the permitted reason of

deterring frivolous actions. The First Amendment does not

prohibit sanctions in this case.

Nevertheless, because this court has not previously

clearly articulated the rule that of-counsel attorneys may be

sanctioned under Rule 11, the panel declined to give its

holding retroactive effect. It therefore reversed the

imposition of sanctions in this case.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 LAKE V. GATES

Concurring in the judgment only, Judge Bumatay wrote

that as a textual matter Rule 11 permits different levels of

accountability for different attorneys in a case. So, when an

attorney designates himself as “of counsel” on a filing to

expressly signal his limited, specialized role in the filing,

what’s reasonable in that circumstance may differ from

what’s reasonable for the “attorney of record” or those

attorneys responsible for the filing. To encourage the

participation of specialized attorneys and to improve the

quality of advocacy in the courts, the panel should have

adopted a rule that recognizes the circumscribed role that

some attorneys with subject-matter expertise may play in

litigation.

COUNSEL

Dennis I. Wilenchik (argued), John D. Wilenchik, and Garo

Moughalian, Wilenchik & Bartness PC, Phoenix, Arizona,

for Plaintiffs-Appellants.

Emily M. Craiger (argued), The Burgess Law Group LLC,

Phoenix, Arizona; Joseph J. Branco, Assistant Counsel,

Office of the Arizona Attorney General, Phoenix, Arizona;

Sean M. Moore, Joseph E. La Rue, and Thomas P. Liddy,

Deputy County Attorneys, Civil Services Division; Rachel

H. Mitchell, Maricopa County Attorney; Maricopa County

Attorney’s Office, Phoenix, Arizona; for Defendants-

Appellees.

Gary Apfel, Troutman Pepper Locke LLP, Los Angeles,

California, for Amicus Curiae Aleph Institute.

LAKE V. GATES 5

OPINION

GOULD, Circuit Judge:

“Of counsel” attorney for Plaintiffs, Alan Dershowitz,

appeals the district court’s award of sanctions under Federal

Rule of Civil Procedure 11. This case presents a novel

question for this circuit: whether and to what extent “of

counsel” attorneys are liable for sanctions under Rule 11.

We conclude that “of counsel” attorneys may be held liable

for sanctions under Rule 11 for signing a frivolous

complaint. But because this case poses a question of first

impression, we decline to give this rule retroactive effect, but

will apply this rule to all attorney “of counsel” designations

made after publication of this opinion.

BACKGROUND

The underlying dispute here concerns Arizona’s voting

system. Plaintiffs filed a complaint in Arizona district court

alleging that Arizona’s current voting system, which

contains electronic elements, insufficiently protects the

rights of Arizona voters and must be replaced by a system

using exclusively hand-counted paper ballots. The district

court dismissed the operative complaint for lack of Article

III standing, and we affirmed. Lake v. Fontes, 83 F.4th

1199, 1204 (9th Cir. 2023) (per curiam). We recount the

procedural history as relevant to our decision.

Plaintiffs filed their first amended complaint (“FAC”) on

May 4, 2022. Dershowitz signed the amended complaint as

“Of Counsel for Plaintiffs Kari Lake and Mark Finchem.”

On May 20, 2022, Counsel for the Maricopa County Board

of Supervisors defendants notified Dershowitz of their

intention to seek both dismissal of the complaint and Rule 11

6 LAKE V. GATES

sanctions. Dershowitz did not reply. In May and June of

2022, the parties held two telephonic conferences regarding

the possibility of sanctions, and Dershowitz was present for

at least one of these conferences.

On June 7, 2022, Defendants moved to dismiss.

Plaintiffs filed a motion for preliminary injunction the next

day. Dershowitz and lead attorneys for Plaintiffs signed the

motion for preliminary injunction as “Counsel for Plaintiffs

Kari Lake and Mark Finchem.”

On July 18, 2022, Defendants served Plaintiffs’

attorneys with the proposed motion for sanctions.

Dershowitz did not respond. On August 10, 2022,

Defendants filed their motion requesting sanctions pursuant

to Rule 11 and 28 U.S.C. § 1927. On August 24, 2022,

Plaintiffs filed their opposition to Defendants’ motion for

sanctions, which listed Andrew Parker, Kurt Olsen, and Alan

M. Dershowitz as “Attorneys for Plaintiffs” on the first page,

and which all three attorneys signed on the last page as

“Attorneys for Plaintiffs.”

The district court granted Defendants’ motion to dismiss

and denied as moot Plaintiffs’ motion for preliminary

injunction on August 26, 2022. On December 1, 2022, the

district court granted Defendants’ motion for sanctions and

ordered the parties to file memoranda regarding the proper

amount of attorneys’ fees.

On December 15, 2022, Defendants filed their

application for attorneys’ fees. On December 29, 2022,

Dershowitz filed his response to Maricopa County’s

application for attorneys’ fees and a motion for an order to

show cause “as to why an award of sanctions should be

entered against Mr. Dershowitz personally or his consulting

firm.” On May 24, 2023, the district court held oral

LAKE V. GATES 7

argument on Defendants’ application for attorneys’ fees and

an evidentiary hearing on Dershowitz’s application for an

order to show cause. During this hearing, Dershowitz

characterized his signatures as “counsel” instead of as “of

counsel” as “a mistake,” and he testified that his principal

contribution to the FAC was paragraph eight. On July 14,

2023, the district court issued its order granting in part and

denying in part Defendants’ application for attorneys’ fees,

granting in part and denying in part the relief requested in

Dershowitz’s application for order to show cause, and

staying the obligation to pay the fees pending resolution of

all appeals. The district court’s order held Parker, Olsen, and

their law firms jointly and severally liable for $122,200.00,

and held Dershowitz jointly and severally liable for

$12,220.00, ten percent of the total fee award.

Lead attorneys appealed the award of sanctions in the

related matter, Lake v. Gates, No. 23-16022. Dershowitz

separately and timely appealed.

DISCUSSION

Although the substantive claim in this matter was

dismissed for lack of standing, federal courts maintain

jurisdiction over “collateral issues after an action is no

longer pending,” including costs, attorneys’ fees, or

sanctions, because such motions “are ‘independent

proceeding[s] supplemental to the original proceeding and

not a request for a modification of the original decree.’”

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990)

(quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 170

(1939)). We have appellate jurisdiction pursuant to

28 U.S.C. § 1291. Kaass Law v. Wells Fargo Bank, N.A.,

799 F.3d 1290, 1292 (9th Cir. 2015).

8 LAKE V. GATES

I. Rule 11 Sanctions

Rule 11(b) states that, by “signing, filing, submitting or

later advocating” for a “pleading, written motion, or other

paper,” an attorney certifies that:

(1) it is not presented for any improper

purpose, such as to harass, cause unnecessary

delay, or needlessly increase the cost of

litigation; (2) the claims, defenses, and other

legal contentions are warranted by existing

law or by a nonfrivolous argument for

extending, modifying, or reversing existing

law or for establishing new law; [and] (3) 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[.]

Fed. R. Civ. P. 11(b). A complaint that does not comply with

any one of these requirements gives grounds for monetary

sanctions. See Fed. R. Civ. P. 11(c); see also Truesdell v. S.

Cal. Permanente Med. Grp., 293 F.3d 1146, 1153 (9th Cir.

2002).

In an opinion filed immediately before this opinion, we

held in the related case Lake v. Gates, No. 23-16022, that the

FAC contained false and misleading statements in violation

of Rule 11. The only question left before us in this separate

and related appeal is whether Dershowitz is subject to

sanction as a lawyer who signed a pleading as “of counsel.”

The liability of “of counsel” attorneys under Rule 11 is a

novel question for this circuit, and one that our Appellate

court has not previously addressed. But before addressing

LAKE V. GATES 9

that question, we first turn to Dershowitz’s arguments based

on the First Amendment and but-for causation.

II. Whether the imposition of sanctions violates the

First Amendment

Dershowitz first contends that the district court’s

imposition of sanctions violates the First Amendment by

targeting a specific viewpoint or subsection of speech. As

the Supreme Court has held, “[i]t is unquestionable that in

the courtroom itself, during a judicial proceeding, whatever

right to ‘free speech’ an attorney has is extremely

circumscribed.” Gentile v. State Bar of Nev., 501 U.S. 1030,

1071 (1991). And we have held that “the right to petition

protected by the First Amendment does not include the right

to maintain groundless proceedings.” Larsen v. C.I.R., 765

F.2d 939, 941 (9th Cir. 1985) (per curiam). Having reviewed

the district court’s order, we hold that the district court did

not impose sanctions for the improper purpose of silencing

speech, but for the permitted reason of deterring frivolous

actions. Cooter & Gell, 496 U.S. at 393. The First

Amendment does not prohibit sanctions in this case.

III. Whether Dershowitz was the but-for cause of

Defendants’ damages

Next, Dershowitz contends that Rule 11 sanctions

against him are inappropriate because the district court did

not and cannot demonstrate that “but for” his actions, the

Defendants would have incurred expenses. Dershowitz

posits that “the same fees awarded would have been incurred

regardless of anything Dershowitz did” because the

Defendants would have incurred the same legal fees

regardless of Dershowitz’s involvement. This contention

relies upon the Supreme Court’s decision in Goodyear Tire

& Rubber Co. v. Haeger, 581 U.S. 101 (2017). In that case,

10 LAKE V. GATES

the Court held that there must be a “causal link” “between

the litigant’s misbehavior and legal fees paid by the

opposing party.” Goodyear, 581 U.S. at 108. “That kind of

causal connection . . . is appropriately framed as a but-for

test: The complaining party . . . may recover only the portion

of his fees that he would not have paid but for the

misconduct.” Id. at 109 (citation and quotation marks

omitted).

The district court here analyzed the defendants’

requested fees and reduced the fee award to only the fees

demonstrated by the defendants to have been reasonably

incurred during litigation. The district court already applied

a but-for test in determining what the defendants “would not

have paid but for the misconduct.” See Goodyear, 581 U.S.

at 109 (citation and quotation marks omitted). However,

Dershowitz asks this Court to go one step further and require

that the court determine attorney-by-attorney who caused

specific fees. Given that opposing counsel has no way of

knowing who wrote which parts of a given brief, in order to

keep adequate records to recover attorneys’ fees, litigants

would need to maintain billing records specifying the topic

of their work to an unreasonable level of granularity—in this

case, down to each paragraph of the FAC. Because such a

requirement as a precondition to applying for attorneys’ fees

would be impractical and in some cases would not be

feasible, we decline to adopt this heightened causation

analysis.

IV. Whether “of counsel” attorneys may be

sanctioned under Rule 11

Finally, Dershowitz contends that he should be exempt

from sanctions because of his limited, “of counsel” role.

That is the novel issue before us, as our Circuit has never

LAKE V. GATES 11

addressed the question of “of counsel” liability for sanctions

on pleadings signed in that capacity. Dershowitz contends

that Rule 11 has limited application to “of counsel”

attorneys. He also claims that, even if Rule 11 could apply

to “of counsel” attorneys, Dershowitz cannot be liable

because he did not personally engage in sanctionable

behavior. Defendants disagree and contend that the plain

language of Rule 11 includes all attorneys who sign the

pleadings.

The Supreme Court has held that courts are to “interpret

Rule 11 according to its plain meaning.” Cooter & Gell, 496

U.S. at 391. Courts may also consider the history and

purpose of the rule in their analysis. Id. at 392–93. The text

of Rule 11 requires that “every pleading . . . be signed by at

least one attorney of record[.]” Fed. R. Civ. P. 11(a). By

signing a pleading, the attorney certifies that “to the best of

the person’s knowledge, information, and belief, formed

after an inquiry reasonable under the circumstances” the

pleading is not “presented for any improper purpose,” the

claims are not frivolous, “the factual contentions have

evidentiary support,” and “the denials of factual contentions

are warranted.” Fed. R. Civ. P. 11(b). “[T]he central

purpose of Rule 11 is to deter baseless filings in district court

and thus . . . streamline the administration and procedure of

the federal courts.” Cooter & Gell, 496 U.S. at 393.

Dershowitz contends that “the text [of the Rule] merely

requires, and its purposes are met, by holding ‘of counsel’

responsible only for those matters within the scope of their

intended work.” Dershowitz states that he only worked on

paragraph eight of the FAC. Because that paragraph deals

primarily with general principles of constitutional law and

because Dershowitz claims he did not contribute to the

12 LAKE V. GATES

factual sections, Dershowitz contends that he did not engage

in any sanctionable conduct.

But Dershowitz’s reading of Rule 11 contravenes the

clear text of the Rule. See Fed. R. Civ. P. 11. Every attorney

who presents a “pleading, written motion, or other paper” to

the court, “whether by signing, filing, submitting, or later

advocating it,” certifies compliance with the enumerated

requirements. Fed. R. Civ. P. 11(b) (emphasis added).

Though Dershowitz’s limited role may impact what inquiry

is “reasonable under the circumstances,” nothing in the text

of the Rule indicates that appearing as “of counsel” relieves

Dershowitz of the important responsibility of lawyers

signing documents to perform a reasonable investigation of

the facts. See id. As explained in greater detail in Lake v.

Gates, No. 23-16022, the unsupported allegations in this

matter went to the heart of plaintiffs’ claims. Dershowitz

could have easily discovered the faults in plaintiffs’

pleadings if he had conducted any investigation at all.

Indeed, when a widely known and respected lawyer in

Dershowitz’s position 1 signs onto a pleading, it can have an

impact on the decision-maker and that means counsel’s

attestation is all the more important. Though Dershowitz

argues that any investigation would be too onerous for “of

counsel” attorneys and would, thus, deter “of counsel”

engagement, his argument does not persuade us for two

reasons: First, in each and every case, society benefits from

an attorney’s endorsement of a pleading by their signature,

1

Alan Dershowitz came to great fame in connection with his role on the

so-called “Dream Team” defending Defendant O.J. Simpson in a widely

viewed murder trial that played out on national T.V. throughout the

United States. The case was People of the State of California v. Orenthal

James Simpson, and the televised trial took place between January and

October of 1995, before many reading this opinion were born.

LAKE V. GATES 13

essentially because that signature means the attorney has

performed a reasonable investigation under the

circumstances and is representing that the pleading’s

allegations are not frivolous and that there is a basis for facts

alleged. Second, although in this case Dershowitz’s

signature as “of counsel” could demand a lesser

investigation than that of the lead counsel, a lawyer’s

signature should not be added to a pleading for credibility

unless that lawyer has made an investigation reasonable in

the total circumstances. Instead, holding “of counsel”

attorneys responsible for a reasonable level of investigation

under the totality of circumstances will support the purpose

of Rule 11 by discouraging experienced attorneys from

lending their credibility to frivolous suits. We hold that “of

counsel” attorneys may be held liable for sanctions under

Rule 11 if they sign a pleading without a reasonable basis to

believe the pleadings are not frivolous and are based on

facts. See also King v. Whitmer, 71 F.4th 511 (6th Cir.

2023).

But because the liability of “of counsel” attorneys was

not clearly stated in our previous case law, we decline to hold

Dershowitz personally liable in this action. We reverse the

district court’s imposition of sanctions in this instance,

because we have determined that our rule holding “of

counsel” lawyers liable for signing pleadings should not be

applied retroactively to signatures on pleadings made before

the publication of this opinion. Dershowitz, and other

lawyers who are members of any bar association, however,

are advised that we will apply our rule in the Ninth Circuit

to any signed pleadings after the date of publication of this

opinion.

14 LAKE V. GATES

CONCLUSION

We affirm the district court’s holding that of-counsel

attorneys may be sanctioned under Rule 11 for signing

frivolous complaints. But because the court has not clearly

articulated this rule before, we decline to give our holding

retroactive effect and reverse the imposition of sanctions in

this case.

AFFIRMED IN PART AND REVERSED IN PART.

BUMATAY, Circuit Judge, concurring in the judgment

only:

This case is an important one for the legal profession.

Do we adopt a one-size-fits-all approach to sanctioning

attorneys who sign pleadings or other filings containing false

or misleading statements? Under that approach, all

attorneys listed on a filing will face sanctions for any false

or misleading statement in the filing—regardless of their

lack of participation in the falsity. 1 Or do we take a more

nuanced approach, one that looks beyond the mere fact of a

signature on the filing to sanction attorneys? That approach

considers the attorney’s actual contributions to the

misleading or false filings when the attorney expressly

announces a limited role in the litigation.

1

To be clear, as my dissent in Kari Lake v. Bill Gates, No. 23-16022,

makes clear, no attorney engaged in sanctionable conduct in this case.

In this concurrence, I accept the premise that the filing here contained

false or misleading statements only to show that specialized attorneys

who do not contribute to the falsity should not be sanctioned under

Federal Rule of Civil Procedure 11.

LAKE V. GATES 15

Federal Rule of Civil Procedure 11 provides the answer.

It requires attorneys to certify the accuracy of a filing only

to the “best” of their “knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances.”

Fed. R. Civ. P. 11(b). So Rule 11 is one of reasonableness—

requiring an examination of the particular “circumstances.”

In turn, Rule 11 limits sanctions to those who “violated the

rule or [are] responsible for the violation.” Id. 11(c)(1). So

Rule 11 also requires personal responsibility for any falsity.

As a textual matter then, Rule 11 permits different levels

of accountability for different attorneys in a case. So when

an attorney designates himself as “of counsel” on a filing to

expressly signal his limited, specialized role in the filing,

what’s reasonable in that circumstance may differ from

what’s reasonable for the “attorney of record” or those

attorneys responsible for the filing. See id. 11(a). And Rule

11 doesn’t support a bright-line sanctions rule holding every

attorney—even those with no part in the violation—

accountable for every line of the filing. See id. 11(c)(1). But

that is the rule the majority follows. Going forward, any

attorney who signs a court filing is now liable for its entire

contents—no matter how minimal their participation and

regardless of whether they had any role in making a

misleading or false statement.

To encourage the participation of specialized attorneys

and to improve the quality of advocacy in our courts, we

should have adopted a rule that recognizes the circumscribed

role that some attorneys with subject-matter expertise may

play in litigation. After all, such attorneys, like Professor

Alan Dershowitz here, often don’t control the litigation.

They may not come from big law firms with the capacity to

throw a handful of associates into a full-blown factual

investigation of every statement in a filing. Nor do they

16 LAKE V. GATES

dictate the nature of the claims sought. And they likely can’t

force the other attorneys to withdraw or amend filings. 2

Instead, specialized attorneys may offer expertise in a

discrete area, benefiting the parties, the court, and,

ultimately, the rule of law. Take Professor Dershowitz here.

He’s a recognized expert on the First Amendment. He has

mostly retired from practicing law and teaching and at times

consults on legal and constitutional issues. His role here was

limited to advising on issues related to the First Amendment.

He was paid for no more than four hours of work, had no

input on the decision to bring suit, and wasn’t retained to

conduct any factual development. Professor Dershowitz’s

sole contribution? Drafting a single paragraph—one of 211

in the complaint—that discussed whether private companies

performing critical government functions could resist

discovery. That issue had nothing to do with what the

district court found false or misleading: whether the

complaint improperly suggested that Arizona doesn’t use

paper ballots. 3

2

In contrast, law firms are held responsible for the misleading or false

filings of their employees precisely because they can control their

attorneys’ actions. See Fed. R. Civ. P. 11(c)(1); Fed. R. Civ. P. 11

advisory committee’s note to 1993 amendment (“[I]t is appropriate that

the law firm ordinarily be viewed as jointly responsible under established

principles of agency.”).

3

In this way, specialized attorneys are more like local counsel, who are

often not held to the same level of accountability as other attorneys. See

Abigail Abide, An Inquiry Reasonable Under the Circumstances:

Applying Rule 11 to Local Counsel, 85 Miss. L. J. 1649, 11 (2017)

(“Some courts have tried to resolve the tension between the requirements

of Rule 11 and the reality of the role of local counsel by refusing to

engage in any analysis of local counsel’s actions.”); Gabriel Techs.

LAKE V. GATES 17

To be sure, “of counsels” and other specialized attorneys

are not immune from Rule 11 sanctions. The “of counsel”

designation is no shield. But it does signal that these

attorneys should be held accountable only for their own

contributions. Given that they are generally brought into the

litigation for a limited purpose, it makes sense that their

liability for sanctions only extends to their actual

participation.

Holding specialized attorneys vicariously liable for the

work of other attorneys may hurt the legal profession and

litigants. The majority’s sanctions regime will discourage

experienced lawyers from providing limited, expert

contributions to court filings. Why should they put their

reputations and careers on the line when they must now

assume liability for work they did not oversee? Rather than

improving the quality of filings, the majority’s interpretation

of Rule 11 risks depriving the legal community of valuable

expertise from professors, retired judges, and other subject-

matter experts. Access to courts will suffer too. Now the

price of litigation will rise when only lawyers with resources

to conduct full-blown pre-filing inquiries can enter the fray.

Corp. v. Qualcomm Inc., No. 08-CV-1992, 2013 WL 410103, at *12

(S.D. Cal. Feb. 1, 2013) (“[T]he reasonable inquiry required for local

counsel under Rule 11 may not be the same as that required for lead

counsel in many situations.”); Golden Eagle Distrib. Corp. v. Burroughs

Corp., 103 F.R.D. 124, 125 n.1 (N.D. Cal. 1984) (Without “indication of

active participation in the preparation or decision to file a paper by local

counsel . . . it does not seem appropriate to subject them to sanctions

other than criticism for their apparent neglect.”); De la Fuente v. DCI

Telecomms., Inc., 269 F. Supp. 2d 229, 233 (S.D.N.Y. 2003) (concluding

that it would be unreasonable to impose sanctions on “local liaison

counsel” because the firm’s role was “essentially administrative”).

18 LAKE V. GATES

And for what purpose? It’s hard to see what sanctioning

Professor Dershowitz would accomplish here when other

attorneys are already bearing the consequences for the

supposedly misleading statements in the complaint. Nothing

in Rule 11’s text supports it. Nor does it serve Rule 11’s

deterrence purpose—Professor Dershowitz had no decision-

making authority over the contents of the complaint, aside

from that one innocuous paragraph. So the majority’s rule

will not stop a single baseless filing. Instead, it appears

designed to punish and deter lawyers like Professor

Dershowitz from participating in disfavored litigation.

It didn’t need to be this way. We should have adopted a

rule that evaluates the actual participation and authority of

“of counsels” and other specialized attorneys when

determining sanctions. Consider how the Sixth Circuit

handled this issue. See King v. Whitmer, 71 F.4th 511, 531

(6th Cir. 2023). In another election-dispute case, the district

court sanctioned an attorney listed as “of counsel” in a

complaint declared frivolous even though she did not sign it.

Id. at 518–19. The Sixth Circuit reversed the sanctions

because it was clear “she played only a minimal role in the

litigation.” Id. at 531. She didn’t draft the complaint or any

other frivolous filing. Id. The Sixth Circuit criticized the

district court for sanctioning the attorney “more as a matter

of form than as a matter of real responsibility.” Id. True, the

“of counsel” in that case didn’t sign the complaint, unlike

here. But the salient point is that the Sixth Circuit focused

on the attorney’s actual responsibility rather than just the

“form” of the filings. The Sixth Circuit also examined

whether an attorney “lacked . . . authority” over the litigation

in imposing sanctions. Id. In the case, the district court

sanctioned another attorney in part for her personally

declining the defendants’ request to voluntarily dismiss the

LAKE V. GATES 19

alleged frivolous complaint. Id. But the Sixth Circuit

reversed the sanctions because the attorney had no authority

to agree to a voluntary dismissal. Id. The lesson from the

Sixth Circuit is thus two-fold—we must consider both the

attorney’s “real responsibility” and “lack [of] authority”

when deciding whether Rule 11 sanctions apply. Id.

Evaluating those factors here, no sanction was appropriate

for Professor Dershowitz.

I appreciate that the majority decides to make its new

rule prospective only and reverses the sanctions order

against Professor Dershowitz. But because the text of Rule

11 doesn’t support the majority’s categorical rule, I concur

in the judgment only.