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Attorney misconduct: Four behaviors that lead to sanctions

February 16th, 2017  |  Lorene Park  |  4 Comments

By Lorene D. Park, J.D.

If there is one branch of federal government where rules of ethics and decorum are consistently enforced, it’s the courtroom. Our “so-called judges,” as President Trump has referred to them, are charged not only with upholding the Constitution, but also with enforcing high standards of conduct among attorneys, thereby ensuring the integrity of our system of justice. Sometimes that means imposing sanctions for pursuing frivolous claims, for lying to the court, and for other attorney misconduct. Here are four examples of attorney conduct that often results in sanctions.

1. Pursuing frivolous claims with no basis in law or fact

First, any attorney who passed a bar exam should know not to file frivolous claims or to continue pursuing claims after it has become clear (perhaps through discovery) that they have no basis in law or in fact. Not only will it hurt the attorney’s reputation among peers and judges, but it exposes the attorney and his or her clients to liability for attorneys’ fees and other sanctions. Nonetheless, attorneys regularly get sanctioned over plainly “specious” allegations.

For example, the Third Circuit recently affirmed an order requiring a plaintiff’s attorney to pay nearly $116,000 because he pursued “substantively frivolous” claims under the ADEA and the LMRA, even after it became clear they had no basis. In the opinion of the district court that granted the employer’s motion for Rule 11 sanctions and the union’s Rule 54 motion for attorneys’ fees, the core problem was that the attorney was less than forthright and needlessly kept the action alive at several junctures with “specious filings,” likely with the intent to “coerce the Defendants into settling a meritless claim.” The attorney argued he should not be sanctioned for asserting novel theories, but the district court found nothing novel about his claims

In another case, a federal court in Illinois imposed Rule 11 sanctions against an employee and his attorney because they continued to pursue age discrimination claims even after they learned the employee was actually replaced by someone who was 10 years older than he was. While a mere disagreement on the facts wouldn’t result in sanctions, the court viewed the employee as “assuming the posture of an ostrich and firmly placing his head in the sand.” One would think his attorney would have pulled it out.

In a case out of Connecticut, attorneys for professional wrestlers managed to walk away from a consolidated wrestling case with only a stern warning for “highly unprofessional” misleading statements, including asserting an “unprovable” claim that the wrestlers had chronic traumatic encephalopathy “on information and belief.” Dismissing the case against World Wrestling Entertainment, the court noted that CTE purportedly can only be diagnosed post-mortem through an autopsy of the subject’s brain, and there was no allegation here that the wrestlers had an autopsy that tested for CTE.

2. Needlessly multiplying the proceedings

Along the same lines of asserting baseless claims, some attorneys incur judicial wrath by filing unnecessary motions (that could have been resolved without judicial intervention) or engaging in litigation practices that waste time and resources. For example, an employer’s attorney was called to task for proceeding with a court-ordered mediation in a race discrimination case even though he knew the employee’s communicated settlement demand was “well beyond” what his client was willing to pay. His failure to share that information with the mediator resulted in a largely unproductive mediation that wasted the time and resources of all involved, concluded a federal court in Pennsylvania, imposing sanctions covering the employee’s share of the mediator’s fee. The court did not impose attorneys’ fees, which it reasoned would have been incurred anyway with the attorney’s preparation for an upcoming neutral evaluation proceeding.

In a case out of Missouri, a federal court exercised a great deal of patience with an attorney’s use of “overheated rhetoric” in briefings. Though dismissing his client’s state-law claims for health benefits, the court allowed her to amend her complaint to add an ERISA claim (to preserve it). Instead of amending, the plaintiff filed a notice of voluntary dismissal. Noting that counsel may not understand the procedural posture and the potential for preclusive effect against any future ERISA claims, the court denied the motion and again extended time to amend. Finally, the plaintiff amended to add an ERISA claim before again filing a notice of voluntary dismissal. When the court granted the defendant’s request for time to review that filing, plaintiff’s counsel filed an objection accusing the court of impropriety and attacking opposing counsel with “unprofessional and inappropriate language.” Finally out of patience, the court exercised its inherent authority under 28 U.S.C. §1927 and ordered plaintiff’s counsel to show cause why he shouldn’t be sanctioned for “unreasonably and vexatiously” multiplying the proceedings.

In some cases, an attorney may not be outright sanctioned for multiplying the proceedings, but may indirectly have to pay for doing so when a court significantly reduces an award of attorneys’ fees (depending on the fee arrangement, a client may or may not have to make up the difference between the award and what was actually billed). In a race discrimination case out of New York, for example, a federal court reduced what could have been an award of $739,000 in attorneys’ fees to $492,706, finding that the “extreme contentiousness” of the litigation and unreasonably high number of hours billed was largely due to the “abysmal” behavior of the employee’s attorney during the litigation and “self-inflicted wounds” during discovery.

3. Misbehaving in depositions

While most discovery disputes usually involve a failure to fully respond to discovery requests, there are occasionally more serious disagreements over whether an attorney’s behavior during a deposition was so unprofessional as to warrant sanctions. Whether fines or other sanctions are imposed will depend on the context, including the nature of the alleged impropriety and attorney’s past behavior (including any prior warnings from the court to behave).

In one case, a federal magistrate judge in New York fined a plaintiff’s attorney $4,700 for unwarranted objections and interruptions during the deposition of his client, and for baselessly accusing opposing counsel of asking racist questions. Whether the attorney’s disruptive behavior was to frustrate opposing counsel or to assure his client of his zealous advocacy, casting aspersions on opposing counsel’s character had “no place in the litigation process and cannot be tolerated,” wrote the court.

In a case from a federal court in Pennsylvania, both sides’ attorneys misbehaved in an employee’s deposition and both got off with warnings. The employee’s attorney was chastised for strategic interruptions and coaching, including whispering to her and showing her his written notes while she was testifying. This, said the court, frustrated the purpose of the deposition. On the other side, defense counsel was cautioned to avoid obnoxious behavior toward the employee when the prematurely ended deposition resumes. Plaintiff’s counsel accused him of asking inappropriate questions on such matters as whether she viewed porn or had been unfaithful to her husband. He also allegedly mocked the employee and rolled his eyes at her, showing what her attorney claimed was “particular insensitivity” considering this was a sexual harassment case.

4. Presenting “alternative facts” (lying) to the court

Beyond mere discovery violations and misbehavior in depositions, some attorneys have been sanctioned for “massaging” evidence to suit current needs (e.g., “sham affidavits”), or worse, outright lying to the court. Obviously, courts do not treat such behavior lightly. For example, the First Circuit affirmed the imposition of $1,000 in sanctions against an attorney based on the submission of a “sham” affidavit by his client, which the court characterized as an attempt to raise triable issues in a discrimination suit by contradicting the employee’s prior testimony. In imposing sanctions under Rule 11 and 28 U.S.C. §1927, the lower court had emphasized the attorney’s track record of similar tactics, noting he was once “admonished to never again file a sham affidavit before this Court.”

Perhaps he forgot that all attorneys have an ethical duty of candor to the court. Woe to attorneys who get caught lying. For example, the Seventh Circuit affirmed a $5,000 sanction against an attorney who failed to explain how a false sexual assault allegation made it into a 100-paragraph complaint. His client in this sex discrimination suit denied in deposition that there was any sexual assault or that she told her attorney there was an assault. In another case, the Fifth Circuit affirmed a $1,000 sanction against an attorney who violated several court orders, including his attempt to make an “end-run” around a court order denying a motion to enroll him as co-counsel (by filing a second lawsuit that added himself as counsel) and another attempt to “obfuscate his involvement” in a series of three consolidated sexual harassment cases.

Behave yourselves out there!

The take-away from these examples is fairly obvious—at least to those working with the judicial branch—follow the rules, act professionally, and don’t lie. That said, one sub-theme found among these cases is that occasional missteps are forgiven. When reading the opinions, it is clear that courts consistently consider the context and appear to give attorneys multiple warnings and opportunities to correct errant behavior before imposing sanctions.

Responses

  1. Beth Price-Almeida says:

    July 30th, 2017 at 7:38 pm

    What I would like to know is who does a person complain to when 1)the court appointed attorney lies to the client when asked a legitimate legal question 2) does not represent the client with even a minimum effort and 3) decides that the defendant should sit outside the courtroom during the arraignment hearing?
    The entire legal system in the town where this “attorney” practices is so unbalanced and ridiculous that it is blatantly obvious to anyone with just a little common sense.

  2. Sheila Freeman says:

    August 10th, 2017 at 12:57 pm

    How can you check an attorney’s record of unnecessary motions filed?

  3. Jeff Peterson says:

    August 18th, 2017 at 2:48 am

    Beth,

    File a complaint to the State Bar (of your state).

    Good luck!

  4. Joseph white says:

    August 29th, 2017 at 9:54 am

    Attorney reginald Dozier could have advise his client in the joseph White v Detroit east community mental health et al case that they must come out. But instead he cost them to closed and not pay the plaintiff. In collusion with gateway attorneys the lost one hundred and twenty million dollars and displaced seventy seven thousand consumers. Detroit east lost rights to operate a mental health facility. These attorneys the Kitch law firm
    Lead attorney Karen Berkery and Lewis and munday attorney Reginald Dozier need to be lock
    Up for being a harm to themselves and a harm
    To others. Joseph white Nasw’s

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