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Silly Lawyer Tricks XXVI

Thomas J Donlon


  • In one case, counsel made the right choice to call the clerk to ask but made the wrong choice by not following the clerk’s advice.
  • A sanction decision resulted not from an attorney’s failure to show up for oral argument, but from the unwelcome appearance of too many.
  • A panel deciding an appeal did not even need to hear argument before slamming the door on an attorney.
Silly Lawyer Tricks XXVI
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Disciplinary Couns. v. Valenti, 2021 WL 15555280 (Ohio Apr. 21, 2021)

Some rules are fairly simple, e.g., when filing an appellate brief, be sure to file the correct one.

This case concerned an attorney disciplinary action involving three separate charges of misconduct.

The first arose when the attorney was appointed as appellate counsel for a defendant sentenced to life without possibility of parole. The attorney failed to file her appeal brief after three extensions. Six weeks after the last due date, the appellate court issued a show cause order for the attorney to file her brief within two weeks or have the appeal dismissed. The attorney filed her initial brief on the last day—and then never filed a reply brief.

At oral argument, both sides informed the court that the parties were waving argument and standing on their briefs. One of the judges expressed concerns about the attorney’s brief, stating that it contained abbreviations and citations that made no sense. It was, the judge said, “52 pages of the most difficult reading I’ve ever probably done in 12 years.” Id. at *1. Given the seriousness of her client’s sentence, the court gave the attorney two weeks to file a reply brief to clarify her arguments and rescheduled oral argument. Id. The attorney failed to file a reply—even after another extension—and the court removed her as appellate counsel, noting that her brief was “inadequate, incoherent and unintelligible.” Id.

When this misconduct was raised at her disciplinary hearing, the attorney finally explained that “she has inadvertently filed a draft of her brief and failed to save the final version.” Id. She claimed that she had intended to file a reply, but her USB flash drive “broke off” and she was removed as counsel before she could file a reply. Id.

The second misconduct charge also involved an appeal, where the attorney failed to file a timely notice of appeal. When she moved to file a delayed appeal, the court granted it so that her client would not suffer but again removed her as appellate counsel. (Two of the judges on this second case had sat on the earlier one.)

The third misconduct charge stemmed from the attorney’s failure to appear for a client’s hearing. The court again removed the attorney as appellate counsel.

The court approved the recommended six-month suspension (it was stayed) and ordered 12 hours of CLE on law office management and criminal appellate law.

Whether or not the attorney’s story is the electronic version of “the dog ate my homework,” it is a cautionary tale, particularly with the proliferation of electronic briefs.

In re Todd C. Bank, 850 F. App’x 115 (2d Cir. 2021)

This case involved oral argument rather than briefs, but modern electronics (in the form of electronically posted audio and social media) played a role in enhancing its notoriety.

An attorney represented another lawyer, who had challenged the constitutionality of a local rule requiring that a sponsor affidavit accompany any application for bar admission. See Doyle v. Palmer, 787 F. App’x 794 (2d Cir. 2019).

Early in the oral argument in the Doyle case, the presiding judge asked a question regarding what injury the attorney’s client had suffered. Counsel responded, “Are you serious, Judge?” 850 F. App’x at 117. The judge told the attorney that he was being disrespectful and to sit down. The attorney replied, “I see you read the briefs thoroughly.” Id. After opposing counsel rested on his brief, the attorney stood up to say that he wanted rebuttal time. When the presiding judge told the attorney that he had waived rebuttal, the attorney refused to be seated. Then another judge asked that the attorney be removed from the courtroom. Initially, the attorney publicly defended his action, going so far in a (nonapology) letter to the court to complain about the double standard applied to judges and lawyers. Within a few days, the panel issued a summary order denying the Doyle appeal, branding the plaintiff's constitutional claim “specious.” Id.

Counsel’s troubles, however, were only beginning. The panel ordered him to show cause why he should not be sanctioned for his conduct. Apparently realizing the danger that he faced, in his response this time counsel did apologize, conceding that his conduct was “acrimonious and insulting.” Id. at 117. He expressed shame and embarrassment and accepted responsibility.

Nevertheless, the attorney’s response to the show cause order raised other issues. He stated that he had never been ordered by a court to address why he should not be sanctioned or disciplined. However, the decision pointed out, the attorney previously had been sanctioned twice on the motions of other parties: by the district court, which the Second Circuit upheld on appeal, and by the Federal Circuit for the frivolous appeal.

Nonetheless, considering his apology and remorse, the court limited its sanctions to a public reprimand. The court did warn that any repetition of said conduct “will not be tolerated” and could result in his suspension. Id. at 120.

The court also directed that its decision be publicized on its website—and be sent to the New York court with supervisory authority over the attorney. Thus, his troubles may not be over.

Howlett v. City of Warren, 854 F. App’x 722 (6th Cir. 2021)

Before bringing an appeal, it is always a good idea to check if the appellate court has issued another decision directly on point, particularly if the decision involves a denial of jurisdiction.

The present case arose out of a lawsuit against the City of Warren, Michigan, and certain of its police officers. The trial court denied the defendants’ motion for summary judgment based on qualified immunity, and both the city and the individual police officers appealed. After granting appellee’s motion to dismiss the appeal, the appellate court issued a sanctions show cause order.

As the decision notes, qualified immunity provides an exception to the general rule that a federal court has no jurisdiction to hear an appeal of a denial of summary judgment. Thus, while the police officers lost their appeal, they avoided sanctions because their qualified immunity claims conferred jurisdiction. The city, however, could not claim qualified immunity as a defense to the claims against it.

In response to the show cause order, the city essentially admitted that “it had no ‘cognizable appeal’ of the denial of summary judgment. . . .” Id. at 723. To avoid sanctions, the city argued that it included its arguments in conjunction with the police officers’ qualified immunity claim, anticipating that the court of appeals “would entertain the viable portions of the appeal on its merits” and discard the rest. Id.

That excuse was rejected because, as the decision points out, a litigant cannot abdicate its responsibility to evaluate the validity of its own arguments to the court. More importantly, the Sixth Circuit had previously rejected another city’s attempt to ride the coattails of a qualified immunity appeal by arguing pendant jurisdiction. As the Sixth Circuit had rejected that attempt—and awarded sanctions against that city—Warren’s appeal was “clearly futile” Id. at 724. Concluding that the city’s intent in filing the appeal was delay or harassment, the court ordered it to pay damages to the appellee.

It is unclear if the city did not know about the prior Sixth Circuit decision or if it merely thought it could get away with bringing the appeal anyway. Either way, it had to pay.

Eugster v. Ct. of Appeals of the State of Wash., 2021 WL 2511666 (Wash. Ct. App. Div. 1 June 7, 2021)

This case may be the ultimate example of “When you are in a hole, stop digging!” Similar to another case recently discussed in this column, the title of the case is a good indication that the ending will not be great.

An attorney appealed a trial court’s award of sanctions to the defendant, Washington State Bar Association (WSBA), arising out of a previous disciplinary case. The sanctioned attorney had sought a declaratory judgment, seeking to invalidate portions of a decision by a Washington appellate court because, he claimed, the appellate court lacked jurisdiction. The attorney named as defendants both the WSBA and the appellate court.

As an indication of how long the attorney has been digging his hole, the appellate decision he sought to overturn is referred to as Eugster VI. Id. at *1. The trial court ruled that it had no authority to review the decision of the higher court—and that the suit was barred by collateral estoppel because the attorney had raised the same argument in his last appeal. The trial court then awarded the WSBA attorney fees for defending a frivolous suit.

Undeterred, the attorney brought the present appeal. A different appellate court affirmed on both grounds, noting “[i]t was not manifestly unreasonable for the trial court to determine that the suit was frivolous and impose sanctions and fees. . . .” Id. at *2. The appellate court then determined that “[t]his appeal is frivolous for the same reasons the underlying suit is frivolous,” id. at *3, and added an award of attorney fees on appeal.

The attorney did not get the message: just stop digging (and incurring more attorney fees).