Under 28 U.S.C. § 1927, a federal court can order an attorney to personally pay the extra fees and costs the other side ran up because the attorney unreasonably and vexatiously multiplied the proceedings. Sanctions under 28 USC 1927 come out of the lawyer’s own pocket, not the client’s, and unlike Rule 11 the statute has no safe harbor: the first notice an attorney gets is often the motion itself.1Office of the Law Revision Counsel. 28 USC 1927 – Counsel’s Liability for Excessive Costs
The Four Elements a Court Must Find
The statute is a single sentence, but courts have broken it into four requirements that all have to be present. The person sanctioned must be an attorney or someone else admitted to practice in a federal court. That person must have multiplied the proceedings in a case. The multiplication must have been unreasonable and vexatious. And the opposing side must have incurred excess costs, expenses, or attorney fees as a direct result.1Office of the Law Revision Counsel. 28 USC 1927 – Counsel’s Liability for Excessive Costs
Each element does real work. A weak motion that gets denied quickly hasn’t necessarily multiplied anything. Conduct that extended the case but wasn’t vexatious falls outside the statute. And fees the other side would have incurred anyway aren’t recoverable no matter how badly the lawyer behaved.
Who Can Be Sanctioned
The statute reaches “any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof.”1Office of the Law Revision Counsel. 28 USC 1927 – Counsel’s Liability for Excessive Costs That covers any licensed attorney appearing in a federal case, including those admitted pro hac vice for a single matter, and it also reaches non-attorney practitioners formally admitted to practice before a particular federal court.
The word “personally” is what gives the statute its bite. The attorney pays from their own funds. The sanction cannot be shifted to the client, and the client cannot be forced to indemnify. The individual-liability design also means law firms generally cannot be held vicariously liable for an associate’s sanctionable conduct under § 1927, though courts have debated this point and the question isn’t fully settled in every circuit.
Pro Se Litigants
Unrepresented parties who aren’t members of any bar fall outside the statute because they haven’t been “admitted to conduct cases.” A pro se litigant who files frivolous motions is not exposed to § 1927 sanctions, though courts have other tools for that situation, including their inherent authority and Rule 11.
Bankruptcy Courts
Section 1927 applies in the courts where searchers most often encounter it — district courts and courts of appeals. Bankruptcy courts are a different matter. The statute refers to “any court of the United States,” a term federal law defines to include only courts whose judges hold office during good behavior. Bankruptcy judges serve 14-year terms under a different chapter of Title 28, and several circuits have concluded that bankruptcy courts lack independent authority to impose § 1927 sanctions.
What “Unreasonably and Vexatiously” Means
The statute demands that the conduct be both unreasonable and vexatious. That sets a higher bar than incompetence. A missed deadline from a calendaring mistake is unreasonable but hard to call vexatious. Filing the same dismissed motion for a fourth time checks both boxes.
The federal circuits are split on how to measure vexatiousness, and the split determines what the moving party has to prove.
A majority of circuits — including the First, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh — apply an objective standard. The question is whether a reasonable attorney would have known the conduct was improper, regardless of what this attorney actually believed. Reckless indifference to the consequences can be enough.
Other circuits, including the Second, require subjective bad faith. The moving party must show deliberate intent to delay or harass. Under this stricter standard, even egregiously poor lawyering may escape sanctions if the attorney genuinely believed the conduct was appropriate.
The practical difference is significant. In an objective-standard circuit, pursuing a claim no reasonable lawyer would consider viable exposes the attorney to sanctions even with sincere belief in the case. In a subjective-bad-faith circuit, the opposing party has to show the attorney knew the claim was baseless and pressed it anyway.
Conduct That Triggers Sanctions
Courts have identified recurring patterns that qualify as multiplying proceedings. The common thread is that each action forced the other side and the court to spend time and resources on something that served no legitimate purpose.
- Refiling denied motions. Resubmitting the same motion after a clear denial, without any meaningful change in facts or law, is one of the most straightforward triggers.
- Stonewalling discovery. Refusing to produce documents or answer questions without a legitimate privilege or objection forces motions to compel and extra rounds of briefing.
- Pursuing abandoned claims. Continuing to litigate after it becomes clear no factual or legal basis supports the claim. Many sanctions decisions turn on this: the question isn’t whether the claim was weak at filing, but whether the attorney kept pushing it long after the writing was on the wall.
- Flooding the record. Filing unnecessarily lengthy or duplicative briefs, introducing irrelevant evidence, or calling witnesses with nothing useful to add.
- Bad faith scheduling. Repeatedly seeking continuances, canceling depositions at the last minute, or otherwise manipulating the calendar to run up costs.
A single questionable filing rarely triggers § 1927 sanctions. Judges typically look for a pattern, or at least a particularly egregious instance where the lack of justification is obvious.
What the Attorney Pays
Financial exposure is capped at the incremental costs the opposing party incurred because of the improper conduct. The statute authorizes the court to require the attorney to “satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”1Office of the Law Revision Counsel. 28 USC 1927 – Counsel’s Liability for Excessive Costs This is not a windfall. A court cannot award the full cost of the entire lawsuit. It can only order reimbursement of what the other side spent responding to the specific conduct that crossed the line.
In practice, the party seeking sanctions submits detailed billing records showing which hours went to dealing with the vexatious conduct rather than normal litigation activity. The judge then separates legitimate expenses from the excess. This calculation can be contentious in complex cases where the sanctionable behavior is intertwined with proper litigation. Awards in commercial litigation involving extended discovery abuse can reach tens of thousands of dollars.
No Safe Harbor
One of the most consequential features of § 1927 is what it lacks. Under Rule 11 of the Federal Rules of Civil Procedure, a party seeking sanctions must serve the motion on the opposing attorney and then wait 21 days before filing, giving the offending attorney a chance to withdraw or fix the problematic filing.2Legal Information Institute. Federal Rules of Civil Procedure Rule 11 – Signing Pleadings, Motions, and Other Papers Section 1927 has no equivalent. A sanctions motion under the statute can land without any prior warning.
By the time the attorney learns sanctions are being sought, the conduct has already happened, and there is no statutory mechanism to undo it by withdrawing an offending filing. The only option is to defend the conduct on the merits. Some courts and commentators argue that the absence of procedural safeguards is a reason to interpret the statute narrowly.
Due Process Protections That Still Apply
No safe harbor doesn’t mean no protections. Due process still applies, and appellate courts have reversed sanctions awards where trial courts cut corners.
At minimum, the attorney is entitled to notice that sanctions are being sought and an opportunity to respond. When intent or state of mind is at issue, some circuits have required trial courts to hold evidentiary hearings rather than deciding on the papers alone. The Eleventh Circuit, for example, has held that a district court abused its discretion by rejecting a magistrate judge’s factual findings and imposing sanctions without hearing a single witness.
Courts must also make specific findings tying the conduct to the excess costs being claimed. A vague declaration that the attorney “acted in bad faith” without identifying which actions multiplied proceedings and which costs resulted is not enough. Detailed findings protect the attorney’s ability to challenge the award on appeal.
Appealing a Sanctions Order
Appellate courts review § 1927 sanctions for abuse of discretion, meaning the trial court’s decision stands unless it rests on a clear error of judgment or an incorrect legal framework.3United States Court of Appeals for the Third Circuit. Thom Lewis v Jesse Smith et al, Opinion No 10-4254 The underlying finding of bad faith is reviewed for clear error, which asks whether the trial judge’s conclusion was plausible on the whole record.
The same abuse of discretion standard governs the amount of fees awarded and procedural calls like whether to hold an evidentiary hearing.3United States Court of Appeals for the Third Circuit. Thom Lewis v Jesse Smith et al, Opinion No 10-4254 Trial courts have significant latitude, and the attorney challenging the award carries a heavy burden. The most successful appeals involve trial courts that failed to hold a hearing, made inadequate factual findings, or applied the wrong legal standard for the circuit.
How Section 1927 Compares to Rule 11 and Inherent Authority
Attorneys sometimes treat these sanctions tools as interchangeable. They aren’t, and picking the wrong one can sink an otherwise meritorious sanctions motion.
Rule 11 targets specific signed filings. Section 1927 targets a broader course of conduct, so discovery obstruction, hearing delay, and bad faith scheduling can trigger it even when no single signed document violates Rule 11. Rule 11 sanctions can reach attorneys, law firms, and in some circumstances the parties themselves. Section 1927 falls on the individual attorney alone.1Office of the Law Revision Counsel. 28 USC 1927 – Counsel’s Liability for Excessive Costs Rule 11 uses an objective reasonable-inquiry test. Section 1927 demands unreasonable and vexatious conduct, with most circuits requiring at least recklessness. And Rule 11 has the 21-day safe harbor; § 1927 has none.2Legal Information Institute. Federal Rules of Civil Procedure Rule 11 – Signing Pleadings, Motions, and Other Papers
Federal courts also have inherent authority to sanction misconduct independent of any statute. Inherent authority is broader in some ways: it can reach parties, potentially reach law firms, and address conduct outside the “multiplying proceedings” language. The trade-off is that inherent authority sanctions generally require bad faith in every circuit, whereas § 1927 may be satisfied by objective recklessness in many of them. Judges sometimes invoke both the statute and inherent authority in the same order as alternative grounds, giving the ruling a better chance of surviving appeal whichever standard the appellate court applies.