Curious what you all think.
Under Rule 11, of course, a lawyer is entitled to argue anything that is non-frivolous. Under the ethics rules, lawyers are to represent their clients competently and within the law, subject to many limitations but, at the outside, also this same barrier: a lawyer can’t make frivolous claims or arguments.
Prior to Octane, a lawyer could push to the limits of Rule 11 and the ethical rules without risking (in the abstract, of course) fee shifting under Section 285. This is because Section 285 had been interpreted (wrongly, I think) to require proof by clear and convincing evidence of both subjective and objective frivolousness.
Now, fees can be shifted if the case is merely out of the ordinary — even if it complies with Rule 11. This could have a remarkable chilling effect on litigation: we want lawyers to challenge bad patents, for example.
In thinking about this, it seems to me that lawyers should be regularly counseling their clients about important developments in litigation that, while not risking Rule 11 sanctions (or under 1927, inherent power, etc.) nonetheless risk fee shifting. “I can do this, and I may have a duty to do this, but it creates risk for you.”