chevron-down Created with Sketch Beta.

ARTICLE

Silly Lawyer Tricks XXII

Thomas J Donlon

Silly Lawyer Tricks XXII
Catherine Falls Commercial via Getty Images

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

Allen-Noll v. Madison Area Tech. Coll., 969 F.3d 343 (7th Cir. 2020)

A series of self-inflicted wounds in the district court led to a loss—and substantial monetary sanctions for the plaintiff. Showing that counsel failed to learn from his mistakes, the appeal resulted in another loss and more sanctions.

This case involved a claim for racial discrimination arising out of a college’s decision not to renew the contract of a nursing instructor. Following discovery (during which the plaintiff’s and her counsel’s conduct resulted in sanctions of over $14,000), the college moved for summary judgment. Although the local rules required an opposing party to answer each numbered fact proposed by the moving party, the plaintiff instead “submitted a photocopy of those proposed findings with question marks, underlining and some illegible handwritten notes in the margins,” while failing to file any proposed facts of her own. On the merits, the plaintiff “responded . . . but barely,” with a brief that “contained a single page of legal argument.” The plaintiff subsequently filed a late declaration that “contradicted her previous sworn testimony, so the sham affidavit rule applie[d].” The district court accepted most of the college’s facts as undisputed and held that the plaintiff had failed to offer any admissible evidence of discrimination. Id. at 348–49.

The U.S. Court of Appeals for the Seventh Circuit agreed that the plaintiff’s counsel’s “inscrutabl[e]” and “illegible” comments did not comply with the local rules. As for the plaintiff’s claim of a faculty conspiracy based on “an ‘antebellum’ climate where a racist ‘cabal’ of ‘elite Caucasians’ were attempting to rid the campus of Black people,” the court of appeals concluded that the district court had properly found there was “no evidence.” Id.

Addressing the college’s motion for sanctions, the Seventh Circuit noted that “[g]etting [the plaintiff’s] appeal filed in this Court was a challenge, as four iterations were stricken as procedurally deficient.” The brief finally accepted had major mistakes, including no statement of facts, excerpts from unfiled documents, and “a 30-page summary of the argument that was hardly ‘succinct’ and ‘clear’ as required.” As to the substance, the court rejected as “shockingly irresponsible” the “baseless assertions about the college crafting a racist conspiracy.” Id. at 351–52.

Despite having been previously warned and sanctioned by the district court, and now facing the college’s request for sanctions on appeal, counsel remained unrepentant. Instead, counsel’s sanctions response “engage[d] in inappropriate mudslinging,” including claims that the college “dance[s] to antebellum music of a kangaroo court band playing to the script of off tune frivolity—deserving of the boos of sanctions.” Id. (emphasis in original). The court pointed out that counsel had previously received a public admonishment from the state supreme court “to curtail his rhetorical style in future court proceedings or risk sanctions.” Id. at n.2. Abandoning ineffectual warnings, the Seventh Circuit ordered the plaintiff and her counsel to pay the defendants’ counsel fees on appeal, plus double costs.

Bearden v. Ballad Health, 967 F.3d 513 (6th Cir. 2020)

This is another case where the court expressed concerns about counsel’s language and tone. The appeal arose out of an antitrust action involving the merger of two health-care companies. When the defendants moved to dismiss for lack of standing, the plaintiffs proposed a 29-page amended complaint that included the following:

  • The defendant surrendered “much in the manner Marshal Petain surrendered France to Adolph [sic] Hitler.”
  • The merger was an “Octopus which was birthed by [two individuals] on one of the local golf courses while [they] were walking down the ‘green fairways of indifference,’ to the health, safety and welfare of millions of people.”
  • The defendants are “intertwined in an incestuous relationship, the likes of which have not been seen since the days of Sodom and Gomorrah.”
  • The Tennessee Department of Health’s failure to supervise the defendants “is akin to the Tennessee Bureau of Investigation allowing criminals to rape, murder, pillage, loot and plunder on its watch, while its agents stand by.”

 In a related briefing, the plaintiffs described the defendants as “ready to ravenously pounce upon the medical facilities in these areas like the buzzard swoops down upon the carcass of a dead cow.” Id. at 515.

As the opinion explains, “there are good reasons not to disparage your opponent,” including civility and counterproductivity. More importantly, “counsel’s colorful insults do nothing to show that his clients have standing to bring this lawsuit.” Id. The plaintiffs had to show injury in fact, which the new language, however vivid, did not. The motion to amend did nothing to correct the basic jurisdictional flaw, even though it “was four times as long as the original,” because “the additional pages added only insults, not an injury.” Id. at 517.

After affirming the dismissal for lack of standing, the court added,

[W]e take a moment to remind plaintiffs’ counsel that as an officer of the court, he is expected to treat other parties in the case (as well as their counsel) with courtesy and professionalism. . . . [W]e cannot dismiss the disparaging statements in this case as mere stylistic flourishes or vigorous advocacy.

The court concluded that “[c]ounsel will best serve his clients if he remembers this going forward.” Id. at 519.

7222 Ambassador Rd. LLC v. Nat’l Ctr. on Insts. & Alts., Inc., 470 Md. 66 (Md. 2020)

This case serves as a reminder that the role of appellate counsel is not limited to making the best legal arguments.

The case arose out of a dispute between a commercial landlord and its former lessee over the condition of the building. The landlord failed to formally designate an expert witness. The trial judge granted the lessee’s motion in limine to preclude the witness’s testimony. The court of appeals eventually granted certiorari on that issue. However, “an unfortunate thing happened on the way to this forum.” A question arose regarding whether the LLC had forfeited its right to do business by failing to file the required annual report. “As a result, the dispositive issue on this appeal [became] compliance with the law governing Maryland LLCs.” Id. at 69.

Under that law, if an LLC failed to file required reports by a certain date, it was declared delinquent and had 60 days to rectify the delinquency. Failure to do so would mean that the LLC would lose its right to do business in the state, including to bring litigation in the state courts.

The LLC in this case neither filed the proper report nor took corrective action within 60 days. In response to a motion to dismiss the appeal by the lessee, the LLC finally submitted the missing report. However, that was six months after being declared delinquent—far beyond the 60-day grace period. In the interim, during which the petition for certiorari was filed, the LLC’s right to do business, including its right to bring an appeal, was forfeited.

Granting the lessee’s motion, the court observed that “[d]ismissal of the second-level appeal may seem a harsh result.” However, “requiring a business entity to make a few timely filings and payments” is “not an unfair price” to shield its owners from personal liability and gain certain tax benefits. Id. at 81.

Appellate counsel was likely not responsible for the LLC’s regulatory filings. It may have been a completely different law firm. However, the mistake ended an appeal that had enough promise to warrant a grant of certiorari.

In re Zulu Abdullah Ali, 2020 WL 5092879 (Cal. State Bar Aug. 24, 2020)

Sometimes mistakes on appeal come to light as a result of subsequent state bar proceedings.

An immigration attorney filed an emergency petition with the U.S. Court of Appeals for the Ninth Circuit to stay a deportation. The deportation order had been entered by a judge in El Paso, Texas. The Ninth Circuit ordered the attorney to show cause why the petition should not be dismissed or transferred to the U.S. Court of Appeals for the Fifth Circuit. The attorney did not respond, and his petition was dismissed.

Only then did the attorney act, filing a request for reconsideration that claimed he had not responded because his client did not object to transfer to the Fifth Circuit. The Ninth Circuit granted reconsideration, vacated dismissal of the petition, and ordered transfer to the Fifth Circuit. The order also included a warning to the attorney, noting this was not the first time he had filed in the wrong circuit, that “petitioner’s counsel may face sanctions if the conduct continues.” Id. at *2.

Only a year later, the attorney again filed another emergency petition in the Ninth Circuit for a different client ordered deported by a judge in San Antonio, Texas. The Ninth Circuit issued another show-cause order to dismiss or transfer the petition to the Fifth Circuit. This time, the attorney responded, informing the court that his client did not object to transfer to the Fifth Circuit.

The Ninth Circuit ordered the case transferred but also ordered the attorney to show cause why he should not be sanctioned. Rejecting his excuses as not “credible,” the Ninth Circuit imposed monetary sanctions. Id. at *4.

The attorney’s troubles did not end there. The state bar recommended discipline, not only for violating the order to file petitions in the proper circuit, but also for failing to respond to the order to show cause in the first case. Based on his prior record, and extensive mitigating evidence, the state bar only placed the attorney on probation for one year, making this attorney very fortunate.

In re Disciplinary Proceedings Against Wendy Allison Nora, 393 Wis. 2d 359 (Wis. July 14, 2020)

This is another example of a bar discipline ruling revealing significant attorney misconduct. This attorney was not so fortunate, however, in part because the attorney was already serving a prior one-year suspension.

The disciplinary action arose out of two foreclosure cases. In the first, the attorney made a series of attacks upon the plaintiff’s counsel—and the judge, claiming “an actual pattern and practice by Judge Porter and [the Grey Firm] acting in concert to effectuate a fraudulent foreclosure.” She further claimed that counsel—and the judge—had manipulated the record, altered the transcript, and engaged in ex parte communications, making the foreclosure action a “mockery of justice” and “misbegotten proceedings.” Id. at 373–74.

Following denial of her recusal motion, the attorney removed the case to federal district court. That court granted remand for lack of jurisdiction and denied two motions to reconsider, awarding the defendant fees and costs for each.

The attorney next filed a notice of appeal, which listed herself as a party although she was not one below. The Seventh Circuit ordered the attorney to explain why the appeal should not be dismissed for lack of jurisdiction. In response to this order, the attorney attacked the district court judge for “engag[ing] in a campaign of libel against [her].” Id. at 377. The Seventh Circuit dismissed the appeal and ordered the attorney to show cause why she should not be sanctioned for a frivolous appeal. The attorney then completed the trifecta—attacking the court of appeals: “The bias of this panel and many of the judges in this circuit against homeowners’ rights to be heard and defend their homes is apparent in every disputed sentence in the ‘findings’ in the panel’s decision.” Id. at 378–79.

Not surprisingly, the Seventh Circuit imposed sanctions, stating that the attorney “engaged in ‘conduct unbecoming a member of the court’s bar’” and “has repeatedly acted with needless antagonism towards opposing counsel and judicial officers.” The court concluded, “[B]andying about of serious accusations without basis in law or fact is unacceptable and warrants sanctions.” Id.

In the second case, which formed the basis of the disciplinary action, the original foreclosure triggered a bankruptcy proceeding. The attorney objected to a bank’s proof of claim, alleging it relied upon a forged document. The bankruptcy judge denied the objection, describing the attorney’s arguments as “frivolous” and “preposterous.” Id. at 383.

The attorney appealed to the district court. In affirming the bankruptcy court, the district judge stated that the attorney “had failed to comply with the Federal rules” regarding bankruptcy appeals; “failed to provide a cogent statement of the issues on appeal”; and submitted briefs “that are largely unintelligible,” containing “an unfocussed stream-of-consciousness—recitation of general grievances.” Id. at 384. The district court twice warned the attorney that further frivolous submissions would result in sanctions.

Following her pattern, the attorney filed an appeal with the Seventh Circuit. In the interim, she moved to withdraw as counsel in all of the federal court actions but moved to intervene personally in the district court action. The district court allowed her to withdraw but, fulfilling its warning, sanctioned her for her frivolous motion to intervene. Ultimately, the Seventh Circuit affirmed all of the rulings against the attorney, including the sanctions order, noting that “her obligations to her client did not excuse her disregard of the district court’s clear and repeated warnings against continued submission of frivolous and needlessly argumentative filings.” Id. at 387.

For the attorney’s conduct in these two matters, the state supreme court awarded a further suspension for two years. The court noted, “She has been sanctioned multiple times in multiple courts for her frivolous filings.” Id. at 402. The court concluded that the attorney “has not grasped or accepted the extent of her misconduct and at this point she would be highly likely to repeat that misconduct if she held a valid license to practice law.” Id. at 404.

The state supreme court proved prescient on that point. Only a month later, the U.S. district court suspended the attorney’s federal license for six months beyond the end of her state suspension. The relevant misconduct involved frivolous filings during her suspension while allegedly acting pro se (which the court called a “sham”). See In re Discipline of Nora, 2020 WL 5081004, at *2 (W.D. Wis. Aug. 26, 2020). To preclude future attempts to get around her suspension, the district court barred the attorney from filing any civil lawsuits for two years.

Given her record, the attorney may appear in this column again in the future.

    Authors