The 9011(b) representations made by signing a filing, the 9011(c) sanctions procedure, and the safe-harbor letter.
By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Fed. R. Bankr. P. 9011(b).
Federal Rule of Bankruptcy Procedure 9011 is the bankruptcy analog of Federal Rule of Civil Procedure 11. The two rules are substantively parallel; case law construing Rule 11 is routinely applied to Rule 9011, subject to bankruptcy-specific considerations. Rule 9011 has four operative subdivisions:
Every paper filed with a bankruptcy court carries four implicit certifications by the signing attorney or unrepresented party:
The paper is not presented for harassment, unnecessary delay, or needless increase in litigation cost. The standard is objective; subjective good faith is not a defense to a filing whose effect a reasonable attorney would have foreseen as harassment or as an attempt to delay or to increase costs. Courts examine the timing of the filing, its relationship to prior filings, and its substantive effect.
Legal contentions must be warranted by existing law or by a nonfrivolous argument for extension, modification, or reversal of existing law. The rule expressly accommodates good-faith efforts to change the law. A contention that has been rejected by binding authority in the circuit, advanced without acknowledgment of the controlling adverse authority and without a nonfrivolous argument for departure, is sanctionable.
Allegations and other factual contentions must have evidentiary support, or - if specifically so identified - are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. The signing attorney certifies a pre-filing inquiry reasonable under the circumstances. The reasonableness of the inquiry is evaluated in light of the time available, the resources of the attorney, and the accessibility of the relevant information.
Denials of factual contentions must be warranted on the evidence or - if specifically so identified - are reasonably based on a lack of information or belief. A denial of a fact known to the denying party to be true is sanctionable.
Sanctions for Rule 9011(b) violations may be initiated either by motion of a party or sua sponte by the court. The two pathways have different procedural requirements.
A motion for sanctions filed by a party must be served on the alleged offender at least 21 days before it is filed with the court. The 21-day window - the "safe harbor" - allows the alleged offender to withdraw or correct the challenged filing without exposure to sanctions. The safe-harbor letter accompanying the motion typically:
If the challenged paper is withdrawn or corrected within the 21-day window, the motion may not be filed. The safe harbor is not optional; a sanctions motion filed without compliance with the safe-harbor requirement is procedurally defective.
The court may, sua sponte, enter an order describing specific conduct that appears to violate Rule 9011(b) and directing the attorney or party to show cause why sanctions should not be imposed. Court-initiated sanctions are not subject to the safe-harbor requirement, but the show-cause procedure provides comparable notice and opportunity to respond.
The sanction imposed under Rule 9011(c)(2) must be limited to what is "sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." Available sanctions include:
Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2) (frivolous legal contentions). Monetary sanctions may not be awarded on the court's initiative unless the show-cause order issued before voluntary dismissal or settlement of the claims made by or against the party that would be sanctioned.
A creditor files a proof of claim that the debtor believes is unsupported by competent evidence. The debtor sends a safe-harbor letter identifying the specific deficiencies (e.g., absence of contract documentation, calculations not reconcilable with the underlying account history) and demanding withdrawal within 21 days. If the claim is not withdrawn or amended, the debtor may file the Rule 9011 motion concurrently with or after the claim objection.
A debtor files a serial Chapter 13 petition that lacks evidentiary support for the ability to fund a plan. The trustee or a creditor may move for sanctions under Rule 9011 against the petitioning attorney for failure to conduct a reasonable inquiry into the debtor's ability to satisfy 11 U.S.C. Section 1325 confirmation requirements.
The 1997 amendment to FRCP Rule 11 - mirrored in Rule 9011 - expanded the certification to cover not only the original presentation of a paper but also "later advocating" of it. An attorney who continues to advocate a factual or legal contention after learning that the contention lacks evidentiary or legal support may be sanctioned even if the original filing satisfied Rule 9011(b) when made. The duty is not frozen at signing; it is renewed each time the attorney advocates the position to the court.
Rule 9011 sits at the intersection of procedural law and professional responsibility. A violation of 9011(b)(3) - filing a contention without evidentiary support - is also typically a violation of KRPC 3.3(a)(1) / MRPC 4-3.3(a)(1) (false statement of fact to a tribunal) and may trigger reporting obligations under KRPC 8.3 / MRPC 4-8.3. Counsel evaluating a possible Rule 9011 violation should expect parallel exposure under the state rules of professional conduct that bind the attorney in the forum and home jurisdictions.
The safe harbor is procedural, not optional. A motion for sanctions filed by a party without compliance with the 21-day service requirement is subject to denial on that ground alone, regardless of the merits of the underlying allegation. The safe-harbor letter is the necessary procedural predicate.
This page provides general information about Federal Rule of Bankruptcy Procedure 9011. It does not constitute legal advice. The applicability of Rule 9011 to specific conduct in a pending case should be evaluated by qualified counsel.