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frivolous argument. “Recklessness involves a greater degree of
fault than negligence but a lesser degree of fault than
intentional wrongdoing.” Black’s Law Dictionary 1277 (7th ed.
1999). In certain areas of the law, scienter (the fact of an
act’s having been done knowingly) is an element of recklessness.
See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n.12 (1976).
The Court of Appeals for the Ninth Circuit has not stated whether
scienter is an element of recklessness for purposes of
determining whether an attorney recklessly made a frivolous
argument. It has, however, interpreted 28 U.S.C. sec. 1927
(1988) to require a finding of “subjective bad faith”, e.g.,
B.K.B. v. Maui Police Dept., supra at 1107, which suggests that
state of the mind, i.e., scienter, is an element. For guidance
in making the necessary finding, we look to situations in which
scienter is an element of a reckless false claim.
For a public official to recover damages for a defamatory
falsehood relating to his official conduct, the official must
prove that the statement was made with “‘actual malice’ that is,
with knowledge that it was false or with reckless disregard of
whether it was false or not”. New York Times Co. v. Sullivan,
376 U.S. 254, 280 (1964) (emphasis added). Scienter is an
element of such “reckless disregard”: “The defendant must be
proved to have subjectively ‘entertained serious doubts as to the
truth of his publication.’” Alioto v. Cowles Communications,
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