Pro Bono Attorneys Deskbook

 Proposed Revision to Rule 55.03

55.03. Signing of Pleadings, Motions and Other Papers: Appearance and Withdrawal of Counsel; Representations to Court; Sanctions

(a) Signature Required. Every pleading, motion and other filing shall be signed by at least one attorney of record in the attorney's individual name or, if the party is not represented by an attorney, shall be signed by the party. An attorney who assists an otherwise self-represented person in drafting a pleading, motion, or document is required to indicate that the attorney provided assistance in drafting the pleading, motion, or other document. The pleading, motion, or document prepared for an otherwise self-represented person shall include a notation "Prepared with the Assistance of Counsel" with the attorney's name, address, and bar number included on the document to avoid misleading the court and other parties. Every filing made electronically must add a certificate verifying that the original was signed by the attorney or party shown as the filer. The original signed filing must be maintained by the filer for a period of not less than the maximum allowable time to complete the appellate process.

Each filing shall state the filer's address, Missouri bar number, if applicable, telephone number, facsimile number, and electronic mail address, if any.

An unsigned filing or an electronic filing without the required certification shall be stricken unless the omission is corrected promptly after being called to the attention of the attorney or party filing same.

(b) Appearance and Withdrawal of Counsel. An attorney who appears in a case shall

be considered as representing the party or parties for whom the attorney appears for all

purposes, except as otherwise limited by a written entry of appearance. Service of papers shall be made on the self-represented person and not on the attorney providing limited representation.

(1)       An attorney appears in a case by:

(A)       participating in any proceeding as counsel for any party, unless limited by a Notice of Limited Appearance;

(B)       signing the attorney's name on any pleading or motion, except that an attorney who assisted in the preparation of a pleading and whose name appears on the pleading solely in that limited capacity shall not be deemed to have entered an appearance in the matter; or

(C)       making a written appearance. A written entry of appearance may be limited by its terms to a particular proceeding or matter by filing a Notice of Limited Appearance. An attorney who has entered a limited entry of appearance shall be deemed to have withdrawn when the attorney has fulfilled the duties as set forth in the limited entry of appearance and files a Termination of Limited Appearance with the Court.

(2)       A limited entry of appearance for an otherwise self-represented person does not authorize or require the service or delivery of papers upon the attorney providing limited representation.

(c) Representation to the Court. By presenting and maintaining a claim, defense, request, demand, objection, contention, or argument in a pleading, motion, or other paper filed with or submitted to the court, an attorney or party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:

(1) the claim, defense, request, demand, objection, contention, or argument is not presented or maintained 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. An attorney providing drafting assistance may rely on the otherwise self-represented person's representation of facts, unless the attorney knows that such representations are false; 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.

(d) Sanctions. If after notice and a reasonable opportunity to respond the court finds that Rule 55.03(c) has been violated, the court, subject to the conditions below, may impose an appropriate sanction upon the lawyers, law firms, or parties that have committed or are responsible for the violation.

(1)       How Initiated.

(A)       By Motion. A motion for sanctions under this Rule 55.03 shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate Rule 55.03(c). The motion shall be served as provided in Rule 43.01. The motion shall not be filed with or presented to the court unless within thirty days after service of the motion the challenged claim, defense, request, demand, objection, contention, or argument is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in representing or opposing the motion. Absent exceptional circumstances a law firm shall be held jointly responsible for violations committed by its partners, associates, or employees.

(B)       On Court's Initiative. On its own initiative the court may enter an order

describing the specific conduct that appears to violate Rule 55.03(c) and directing a lawyer, law firm or party to withdraw or correct the questioned claim, defense, request, demand, objection, contention or argument or to show cause why it has not violated the rule with respect thereto.

(2) Nature of Sanction – Limitations. A sanction imposed for violation of this Rule 55.03 shall be limited to that which is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated. Subject to the limitations in Rule 55.03(d)(1), the sanction may consist of or include directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the Movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation.

(A)       Monetary sanctions shall not be awarded against a represented party for a violation of Rule 55.03(c)(2).

(B)       Monetary sanctions shall not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose lawyers are, to be sanctioned.

(3)       Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this Rule 55.03 and explain the basis for the sanction imposed.

(e) Inapplicability to Discovery. This Rule 55.03 does not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rule 56 through 61.

(f) Sanctions for Conduct in Prior Action. If conduct constituting a violation of Rule 55.03(c) occurs but the civil action is dismissed and if a civil action based upon or including the same claim against the same party is thereafter filed, the court on its own motion or on motion of a party to the first action may impose an appropriate sanction in the second action for the violation of Rule 55.03(c). The sanction shall be imposed in the manner provided by Rule 55.03(d). In determining the sanction to impose, the court shall consider the costs and expenses incurred in the action previously dismissed, including the reasonable attorney's fees incurred in the first action.

APPROVED BY PRO SE COMMISSION VOTE ON 03/21/07.