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August 26, 2019 Articles

Silly Lawyer Tricks XVII

Be wary of dilatory tactics to advance your case. They can backfire.

By Tom Donlon

This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.

Matter of Lisse, 921 F.3d 629 (7th Cir. 2019)

This is a case where, as the court observed, the attorney had “not received the message” that frivolous appeals “will not be tolerated.” After her clients lost a foreclosure action in state court, the attorney had the home owners file bankruptcy, using “tag-team Chapter 13 bankruptcy filings by a husband and wife—each lacking a good faith basis—to postpone the orderly resolution of state-court proceedings.” While her tactics were successful, allowing her clients to remain in the house for eight years, her conduct ultimately resulted in financial sanctions and suspension from practice.

The bankruptcy court dismissed each of the successive bankruptcy petitions. The attorney then appealed each to the district court. After delays for a year, the district court set a deadline for filing her brief in the husband’s case. The attorney then moved for a stay, citing a doctor’s recommendation that she take leave from practicing law. The skeptical district judge, noting “her ‘history of frivolous and dilatory tactics,’ and efforts to ‘drag[] out the briefing on the merits by satellite skirmishes,’” granted her three more months. Meanwhile, the district court separately affirmed the bankruptcy court’s dismissal of the wife’s case. At the end of the three-month period in the husband’s case (during which the attorney admitted working for other clients instead of filing her brief), the attorney moved to withdraw the appeal. 

The district court granted the motion but, due to the attorney’s “pattern of sharp practice,” ordered her to show cause why she should not be sanctioned. In response, the attorney moved to vacate the show-cause order, claiming that the district judge had “pre-judged the merits of imposing sanctions.” In an attempt “to bend over backwards to accommodate and assuage [the attorney’s] concerns about impartiality,” the district court created a three-judge panel to consider the issue. The panel concluded that the attorney’s “advocacy has crossed the line of professional conduct too many times to be tolerated or ignored any longer.” The attorney was fined and suspended from appearing in the district for six months, but those punishments were stayed unless she submitted another improper filing. In addition, the court granted attorney fees to opposing counsel for responding to a frivolous appeal. One week later, the state supreme court revoked her law license for at least one year, for conduct in in a different case.

On appeal, the U.S. Court of Appeals for the Seventh Circuit observed that this “unfortunately” is not her “first encounter with attorney discipline.” The attorney had received a suspended fine from the Seventh Circuit in 2015. The court of appeals stated that “[w]hile we hope this will be her last such encounter, her serial dilatory, vexatious and unprofessional litigation practices lead us to affirm the district court’s orders,” and “to lift the suspension of our previous monetary sanction. . . .”

The court pointed out that the attorney had failed to file her brief on time, even after receiving an extension. Further, she repeatedly filed requests for judicial notice, even after Judge Easterbrook issued a published opinion, In Re Appeal of Nora, 905 F.3d 495 (7th Cir. 2018), explaining why her requests were improper and unnecessary. The attorney also moved to strike opposing counsel’s brief for citing documents from the related foreclosure case, some of which the attorney herself had filed as exhibits below. The opinion notes that the court had denied that motion as frivolous—and reduced her reply brief by 2,000 words, warning, “in no uncertain terms,” that no further extensions would be granted. The attorney promptly filed a motion for reconsideration that included a request for more time, which the court denied. When opposing counsel moved for fees for a frivolous appeal, the attorney, “not to be outdone,” responded by asking for sanctions against her opponent.

The Seventh Circuit found not only that the appeals to the district court were frivolous but also that her “stall tactics are blatant.” Further, it concluded that the attorney’s “[f]lippant, unfounded accusations of misconduct and fraud by opposing counsel and court officials demean the profession and impair the orderly operation of the judicial system,” and were ethical violations. In light of her conduct, “the district court certainly was entitled to say ‘enough is enough.’”

The Seventh Circuit imposed additional sanctions for her conduct on appeal, concluding that “[n]ot only were [her] arguments on the merits frivolous, she also engaged in meritless and dilatory motion practice before this court.” The court granted opposing counsel’s request for attorney fees and required her to pay the 2015 fine that had been suspended. The court concluded that “[p]art of being a responsible counselor to one’s client is recognizing when the legal battle is lost and advising the client how to best handle that outcome.” Too bad the attorney did not follow this advice in her practice.

Fykes v. Janian, No. B286419, 2019 WL 1648458 (Cal. Ct. App. Apr. 17, 2019)

This case also arose out of a foreclosure but reached the appellate court in a very different posture. Here, the attorney appealed from a million-dollar award against him in a malpractice and fraud action brought by the homeowners.

The factual background is both complex and troubling. A couple purchased a home for their son and his wife, who were responsible for the monthly mortgage payments. Variable rates led to the monthly payment doubling over eight years. While the occupants kept up the payments with help from the parents, they all were looking for a way to modify the loan.

A company, National Help Center Law Group (NHC), offered to have them join a New York lawsuit, which NHC claimed would protect against foreclosure and create leverage to obtain a loan modification. Less than a year later, however, the New York case was dismissed. When the owner in “a panic” tried to contact NHC, its website was down and no one answered the phone.

After going to the office, the homeowner and his son were introduced to Attorney Janian, who convinced them to retain him to file a lawsuit and lis pendens in California (although not revealed then, evidence later showed that Janian was a director and chief financial officer of NHC). Janian, having received a retainer, advised them to stop making payments and to ignore default notices. Janian filed a complaint in California but never filed a lis pendens. He moved for a waiver of court fees but did not appear at the hearing. When the waiver motion was denied, the complaint was dismissed for unpaid fees. The owner received notice of the dismissal, but he again was unable to contact Janian or NHC. Subsequently, the son’s wife discovered on the internet that the house had been sold in a foreclosure, which Janian never told them about. The couple had to sell their possessions and move in with his parents. As a result of the stress, the wife suffered a miscarriage and then lost another baby.

In the subsequent malpractice action, the trial court “found all four of the [owner’s family], every one of them to be honest and credible. There was not even a doubt as to a hint of any issues with credibility. . . .” The court described Janian’s credibility, in contrast, as “extraordinarily low.” The court found Janian liable and awarded over half a million dollars in damages. In ruling on punitive damages after discovery and a separate hearing, the court stated that “Janian’s testimony was not only not credible and evasive, but the evasiveness was so pervasive that” he evaded more questions than he answered, even “seemingly innocuous questions.” The court continued, “It’s clear to this court that Mr. Janian has been involved in comprehensive schemes to hide his assets, to obfuscate people looking for a considerable amount of time.” The court awarded an additional half million dollars in punitive damages.

On appeal, the court noted that Janian “takes the same cavalier approach that may well have contributed to his liability” at trial. Janian’s main argument was insufficiency of the evidence. However, “[t]he facts and record citations Janian musters in his brief as support for these sufficiency of the evidence claims are meager (that is putting it charitably) and one-sided.” Janian only cited his own trial testimony, not mentioning other evidence that the trial court relied upon, which, as the appellate court pointed out, “is not how appellate litigation works.” Opposing counsel pointed out that Janian’s efforts did not comply with the case law requirements for raising a sufficiency claim. The court stated, “On notice of the problem, Janian’s reply did nothing to ameliorate his deficient factual presentation. To the contrary, he cited to the trial transcript only twice (in one footnote). . . .” The court held that Janian had waived his sufficiency argument by using “broad-brush attacks on the sufficiency of the evidence without a serious and fair effort to set forth the pertinent evidence and explain why it does not suffice” under applicable precedent.

The court also held that Janian did not preserve his claim that a witness was wrongly excluded from testifying because Janian did not make the required offer of proof. Finally, the court rejected the argument that the owners’ failure to offer expert testimony on the standard of care was error, ruling that such testimony was not required “because Janian’s professional failings were egregious.”

Weiler v. Mattei, No. A152322, 2019 WL 2225040 (Cal. Ct. App. May 23, 2019)

The attorney in this case was sanctioned for conduct that was as unexplainable as it was unacceptable.

The case began as a negligence action against a landlord for damages suffered in a fire. The jury found the landlord liable for almost $100,000 in damages for passive negligence and premises liability. On a JNOV (judgment notwithstanding the verdict) motion, the trial court found that the negligence was active, therefore negating the landlord’s indemnity claim, and the landlord appealed. The appellate court reversed, finding the negligence passive, and remanded so the issue of indemnity could be determined.

To all appearances, these proceedings were unremarkable. However, prior to oral argument on the appeal, the landlord had died. His attorney never revealed this to the appellate court and did not inform the trial court or plaintiffs’ counsel for over 10 months of pretrial proceedings on remand. Finally, on the third day of trial on the indemnity claim, plaintiffs’ counsel noticed that the landlord had not attended any of the proceedings and did not appear on the witness list. Counsel inquired of the landlord’s attorney but received no response. However, plaintiffs’ counsel discovered an online probate notice for the landlord. When the court inquired about this, the attorney admitted that the landlord “ha[d] passed, yes.” The court terminated the trial.

The plaintiffs moved for sanctions of $100,000 in fees for the terminated trial and for work on the motion for sanctions “because [the attorney] continued to litigate the case for over a year before disclosing [the landlord’s] death.” The attorney did not file an opposition to the sanctions motion, and the court tentatively ruled that the plaintiffs should receive approximately $35,000. The court nevertheless allowed the attorney oral argument, in which he raised for the first time a case holding that a violation of the rules did not permit recovery of the full amount of attorney fees. The trial court, after requesting supplemental briefing, changed its ruling. The court found that continuing to litigate for over a year without reporting the client’s death was a “particularly egregious” violation of California’s rules. The court was also troubled that, at the sanctions hearing, the attorney could not explain when or under what circumstance he learned of the death. The court imposed sanctions of $25,000 and awarded $6,000 in attorney fees on the sanctions motion, stating it “still finds it incredible that counsel, faced with . . . a tentative ruling imposing sanctions of $35,000, would not show up for the hearing with the who, what, where, when, why and how he came to know of the passing of his client.”

On appeal, the attorney argued that the $25,000 fine was an impermissible attorney fee award in disguise. The court responded that this “persistent statement . . . mischaracterizes this record.” The court noted that the attorney’s “other arguments are readily dismissed” principally because he merely mentioned them without citing any authority or developing “any cogent argument.” As “there is no dispute that [the attorney] failed to comply with his obligation to promptly notify the court and the [plaintiffs] of [his client’s] death,” the appellate court affirmed the sanctions order. Why the attorney did not simply file a notice of the death of his client when it happened remained unanswered.

Charlie Brown Heritage Found. v. Columbia Brazoria Indep. Sch. Dist., No. 18-40433, 2019 WL 1953732 (5th Cir. Apr. 30, 2019) (per curiam)

In a dispute over ownership of a school, the president of the plaintiff nonprofit corporation served as its attorney. She also described herself as a “material fact witness” in the plaintiff’s initial disclosures. When the district court expressed concern about a possible conflict of interest, the attorney voluntarily withdrew. However, she continued to sign and file pleadings.

The defendants filed a motion for summary judgment. Shortly before midnight on the day the response was due, the attorney filed a brief response with no exhibits. Then, 15 days after the defendants filed their reply, the attorney filed a “corrected” response, which was 60 pages long and added almost 150 pages of new exhibits. The district court stated that it had been lenient in the past regarding the attorney’s filings, but “[t]oday, that leniency comes to an end.” The judge struck the untimely corrected response, along with the exhibits, and granted summary judgment.

On appeal, “[i]nexplicably, [the attorney] continue[d] to represent the Foundation” and signed the appellate brief. The U.S. Court of Appeals for the Fifth Circuit stated that her brief “can only be described as nebulous, meandering, and conclusory.” Turning to merits, the court ruled that the district court did not abuse its discretion in striking her pleadings as she “had repeatedly filed such ‘placeholder’ filings without consequence.” Holding that the district court’s “action was entirely appropriate,” the circuit court affirmed. While perhaps not the classic “fool for a client” scenario, the result was the same.

Tom Donlon is counsel with the firm of Robinson + Cole LLP in Stamford, Connecticut. A former cochair of the Appellate Practice Committee, Donlon continues to serve as a vice chair while also serving as cochair of the Section of Litigation’s Amicus Curiae Brief Committee.

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