Friday, March 25, 2011

Curmudgeon learns the true meaning of sanctions

And, fortunately, not first hand.

I didn't write about it at the time, not even here in the cocoon of my anonymous blog, but a couple of years ago I got fined by the Seventh Circuit Court of Appeals in Chicago for bringing what the court determined to be an inappropriate, ill-founded motion. I had to write a check to my opponent for what I consider to be a whole lot of money (even if it was less than a quarter of what my opponent requested that I be ordered to pay).

I sent the check and the matter ended. I wasn't criticized by name in the one sentence order awarding the sanction and the sanction wasn't mentioned at all, even obliquely, in the 7th Circuit's subsequent opinion.

But, I assure you, I was traumatized -- and chastened -- by the event, and not just because the client ultimately failed to pay a large chunk of my bill.

I do not mention this in a bid for sympathy. I won't rehash the facts that led me to bring the unhappy motion or in any way try and persuade you that the court was in any way in error in sticking me with a fine. I mention my own sad history only because I thought, at the time, that I'd been sanctioned.

I thought I'd been sanctioned, that is, until I saw Ahmeet Sachdev's column in yesterday's Chicago Tribune.

Sachdev wrote about the Seventh Circuit's opinion Tuesday in the case of Lee v. Cook County, Nos. 10-2013, 10-2402 and 10-3026, in which Chief Judge Frank Easterbrook, writing for the court, slices, dices and purees the Chicago attorney who represented the plaintiffs in this employment discrimination case in the District Court and on appeal.

The attorney's "calamitous handling of this litigation has been followed by a sloppy performance in this court" (slip op. at 7). Indeed, states the opinion (slip op. at 9), "The events recounted in this opinion show that [the plaintiffs' attorney] is a menace to his clients and a scofflaw with respect to appellate procedure. The district court may wish to consider whether he should remain a member of its bar. Would-be clients should consider how [the attorney] has treated [his clients in this case]." The Court of Appeals reprimanded the attorney for his "unprofessional conduct," fining him $5,000 payable to the Clerk of the Seventh Circuit. Also, the attorney was ordered to send his clients "copies of this opinion so that they may consider whether to file malpractice suits against him."

Substantively, the court noted that the amended complaints eventually filed by plaintiffs' counsel in response to the District Court's order dismissing his original complaint without prejudice might not have been timely even if counsel had complied with the District Court's timetable for amendment. Counsel's long delay beyond that deadline was certainly fatal to his clients' claims. And -- adding insult to injury -- the Seventh Circuit noted that the District court erred in dismissing the attorney's original complaint in the first place. "There was nothing wrong with the original complaint," the court stated (slip op. at 3). "Multiple plaintiffs are free to join their claims in a single suit when 'any question of law or fact common to all plaintiffs will arise in the action.' Fed. R. Civ. P. 20(a)(1)(B) (emphasis added). The common question need not predominate; that’s a requirement for class actions, not for permissive joinder. Whether the Cook County prison system discriminates against black employees when making promotions is a question common to all plaintiffs’ claims." However, by failing to immediately appeal the erroneous dismissal, the plaintiffs' attorney 'bungled away' his clients' chances of success.

Maybe only a practicing attorney can appreciate just how much this last bit hurts. Yes, the fine is awful; getting called a "menace" is worse (I've deleted the attorney's name, but the Seventh Circuit did not). However, being told that you had a good case but you screwed it up is the stuff of nightmares.

I got fined for filing an improvident motion; the attorney in the Lee case got sanctioned. I understand the difference now.


Empress Bee (of the high sea) said...

well that certainly sucks curmy... man. sorry!

smiles, bee

Lawfrog said...

Wow. A menace and a scofflaw? Strong language and yes, you are quite right that being told you screwed up a good case is definitely the stuff of nightmares.

Shelby said...

At least you're not a scofflaw. Wait - what's a scofflaw?