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Silly Lawyer Tricks XXXI

Thomas J Donlon


  • In one case, by poor pleading and bad advocacy, in both the trial and appellate courts, any legal remedies were lost.
  • Another plaintiff sold and distributed natural animal substances, which he argued were improperly banned as performance-enhancing drugs.
  • One decision concerns another lawyer who got in trouble by attacking the integrity of a judge, which the lawyer did in writing on appeal.
Silly Lawyer Tricks XXXI
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Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000 (6th Cir. 2022)

This case has both a tragic beginning and a sad ending. It begins with the suicide of a high school sophomore and ends with the parents losing their appeal, primarily because their arguments were either waived or forfeited by their attorneys. The case “highlights the risks for counsel who do not develop a coherent legal theory at the outset of their case and who instead continuously adopt new arguments when problems emerge with their old ones . . . [,] [which] increases the chances their clients will lose on something other than the merits.” Id. at 1005.

The parents’ complaint—which is the only source of facts because the case was decided on a motion to dismiss—describes their son’s high school years as a mixture of bullying by students and improper discipline by the school system, which culminated in a creative writing assignment where their son described his life as a tragedy that will “be the end of me.” Id. at 1006. Eleven days later, he took his own life.

The parents’ first attorney brought suit in state court. Based on a due process claim, the school defendants removed the case to federal court. In successfully seeking remand, counsel clarified that the complaint only alleged claims under state law and the state constitution, and that the federal district court lacked jurisdiction over the state-law claims.

After the case languished for years, the parents retained new counsel. The new counsel believed that the state-law claims were invalid, so counsel filed an amended complaint, adding Title IX and federal constitutional claims.

The school defendants again removed the case to federal court and moved to dismiss. The district court granted dismissal of the state claims because counsel conceded they were meritless, and dismissal of the federal claims because the statute of limitations had run.

In affirming the dismissal, the U.S. District Court for the Sixth Circuit discussed the difference between waiver of claims (where claims were initially raised but then abandoned) and forfeiture (where the claims were never raised below). Regarding the federal constitutional claims, the court concluded, based on the express admission in briefing, that dismissal of procedural due process claims was not contested, and the substantive due process claims were never argued in the district court, so neither survived.  As for the state-law claims, counsel consented to dismissal of the damage claims, and the attempt to argue that equitable claims survived was not raised until their appellate reply brief.

In the end, the parents only had their grief remaining. By poor pleading and bad advocacy, in both the trial and appellate courts, any legal remedies were lost.

Nix v. Major League Baseball, 62 F.4th 920 (5th Cir. 2023)

This case arose out of the long-running struggles of Major League Baseball (MLB) with performance-enhancing drugs (PED). The twist here is that the plaintiff sold and distributed natural animal substances, which he argued were improperly banned as PED.

Beginning in 2016, the plaintiff undertook a series of lawsuits in federal courts in New York, California, and Florida, as well as New York state court, against a laundry list of defendants, including the league, the MLB Players Association, individual teams, major media companies, and various sponsored consumer products (such as Gatorade). The plaintiff never hit even a single in any of these ballparks and only earned a string of sanctions.

The U.S. Court of Appeals for the Fifth Circuit’s decision added more sanctions to those already pending. The decision notes that the plaintiff’s “claims bat far below the Mendoza line” (a baseball term for a player who cannot hit over .200—the minimum average for a competent hitter in the major league). Id. at 928. On the issue of sanctions, the Fifth Circuit upheld the umpire’s (the district court’s) initial call, imposing a prefiling injunction that barred the plaintiff from commencing suit against any of the defendants without court permission. Id. at 937. After a booth review, the court of appeals ran up the score by imposing its own sanctions because the plaintiff’s “appeal is entirely frivolous. . . . [He] does not raise a single colorable argument or explain any specific error.” Id. The decision notes that “[a]ggravating the situation is [the plaintiff’s] past bad faith” because he was on notice not only from the district court but also from courts in California and New York that “his claims have no merit.” Id. The decision points out that although the plaintiff “may believe that defendants’ and the judicial system’s time and energy have as much worth as a ‘piece of metal’ and are unworthy of respect, we disagree.” Id.

The court of appeals not only imposed its own injunction against filing a lawsuit against the defendants in any court within the Fifth Circuit but also added monetary sanctions of attorney fees and double costs of the appeal. If this were a ball game, the plaintiff would have received his third called strike, but the court clearly was afraid he might try to come to the plate again.

In re Marshall, No. S-1-SC-37698, 2023 WL 2472042 (N.M. Mar. 13, 2023)

This decision concerns another lawyer who got in trouble by attacking the integrity of a judge, which the lawyer did in writing on appeal.

The original case involved a dispute over water rights, with the Navajo Nation, the U.S. government, the state of New Mexico, and individual water users and associations as parties. The attorney represented some parties in the last group. The case had gone on for almost 40 years when a settlement was reached between the governmental entities and approved by the judge appointed to oversee the case, over the attorney’s objection.

The attorney filed an appeal—and then filed an emergency motion to disqualify the judge below. “The motion and supportive brief were replete with attacks on [the judge’s] integrity and candor.” Id. at *2. The stated basis of the motion was “disquieting rumors” the attorney had heard in the legislature and the judge’s failure to disclose having worked in the 1970s for the federally funded legal services agency that represented Native people of the Navajo Nation (the attorney incorrectly asserted that the judge had represented the Navajo Nation). The disqualification motion stated that the judge had “favored his former client” and that “the public might reasonably wonder whether the judge fixed this case for his former client.” Id. (emphasis added).

The New Mexico Court of Appeals denied the motion to disqualify and awarded attorney fees to the Navajo Nation and the U.S. government for the attorney’s “frivolous motion,” which “attempted to discredit a judge with absolutely no basis for doing so.” Id. “[O]n notice that his conduct [] likely violated the Rules of Professional Conduct,” the attorney filed a motion for rehearing, repeating his baseless claims. Id. The court of appeals summarily denied rehearing and referred the matter to the disciplinary board, which commenced proceedings against the attorney.

Undeterred, the attorney petitioned the New Mexico Supreme Court for certiorari, “reprising his claim that [the judge] had ‘concealed his ties to the Navajo Nation in order to award water to his former clients without a trial.’” Id. The New Mexico Supreme Court denied the attorney’s petition for certiorari. A hearing was held before a hearing committee of the disciplinary board, and then, at the attorney’s request, a hearing was held before a panel of the disciplinary board. The board found that no reasonable attorney would believe the judge had a conflict and recommended indefinite suspension because the attorney “failed to admit wrongdoing or express remorse.” Id. In accepting the board’s recommendation, the New Mexico Supreme Court pointed out that “[o]ur judicial system depends on the public’s confidence in its fairness and authority. It cannot function if the public is misled to believe that judicial officers lack the necessary integrity or qualifications to perform their duties.” Id. at *1.

The opinion has a long discussion of the appropriate standard for determining the attorney’s violation—whether reckless disregard or actual malice. The court adopted the majority view that recklessness, not First Amendment malice, was required. The court observed that

the proximity of attorneys to judicial officers necessitates a rule prohibiting attorneys from making baseless accusations against them. When an attorney casts unfounded doubt on the integrity of a judge, the public’s perception of the legal system is at great risk because attorneys are rightly perceived by the public as being in a unique position to comment on the judiciary.

Id. at *6. The court found that substantial evidence supported finding violations, particularly because the very evidence that the attorney attached to his pleadings disproved the charges that he leveled against the judge.

In conclusion, the New Mexico Supreme Court pointed out that the attorney was not disciplined for filing a motion for recusal, which he had a right to do, but for making “serious, disparaging allegations impugning [the judge’s] integrity as a judicial officer without a factual basis.” Id. at *12. The court suspended the attorney for a minimum of 18 months, attaching conditions to any subsequent request for reinstatement.

One can almost understand how a lawyer at a hearing or trial might let something negative slip out in the heat of the moment (even though that would be regrettable). But how do lawyers filing a written motion or brief to an appellate court say such dumb and even insulting things? A lawyer has time to cool off before filing in an appellate court—and should be sure to make good use of that time.

In re Rosenberg, 491 Mass. 1027, 202 N.E.2d 1226 (Feb. 23, 2023)

This is a reciprocal discipline decision. The lawyer’s misconduct and discipline occurred in Florida, and counsel for the Massachusetts Bar moved for corresponding discipline when that bar discovered the issue. Initially, a single justice of the Massachusetts Supreme Judicial Court held a hearing and entered an order disbarring the attorney based on his actions in Florida. The lawyer appealed, and the full court affirmed.

From the bare bones, this appears to be a routine case, but then the decision starts to lay out the facts and the arguments, which make for more interesting reading.

The saga began in 2015, when the lawyer initially was suspended by Florida for one year, arising out of his conduct in a civil suit that had resulted in the award of attorney fees (which the lawyer refused to pay). During that one-year suspension, the Florida bar filed a petition for contempt and disbarment because the lawyer continued to practice. When the attorney failed to respond, the Florida court held him in contempt and disbarred him. Under Florida rules, he would have been eligible for reinstatement in five years.

However, the Florida bar filed a second contempt petition because he still refused to stop practicing even after being disbarred. Id. “The petition cited multiple cases in which the [lawyer] had continued to file motions before courts in Florida.” Id. The petition noted that the lawyer’s motions contended his disbarment “violated his First Amendment right to engage in ‘litigation-related speech.’” Id. The lawyer failed to respond to the second contempt petition (even to raise his alleged First Amendment claim). In 2017, the Florida court permanently disbarred him based on the second contempt petition.

Although Massachusetts rules required the lawyer to notify that bar within 10 days of any discipline, it was not until 2021 that the attorney gave notice. The Massachusetts bar moved for reciprocal discipline. The lawyer now chose to fight back, moving to dismiss and “fil[ing] upwards of thirty other motions seeking various forms of relief.” The single justice hearing the case ordered that the lawyer be disbarred in Massachusetts. The lawyer appealed, leading to the present decision.

On appeal, the lawyer did not contest his misconduct in Florida nor the procedures there. Instead, he argued that “rules of professional responsibility serve as content-based restrictions on speech in violation of the First Amendment.” Id. The opinion points out that it is established that states “may regulate professional conduct even though that conduct incidentally involves speech,” id. (quoting Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2372 (2018)), and that “[i]t is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” Id. (quoting Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991)). Therefore, the Massachusetts court held that the lawyer’s First Amendment argument “lacks merit.” Id.

The court stated that “[m]ost egregious among the respondent’s misconduct was his continued engagement in the unauthorized practice of law after his initial Florida disbarment,” which was “further aggravated by his abject refusal to appreciate the wrongful nature of his behavior.” Id. at 1029. Considering all the circumstances, the court affirmed the order disbarring the lawyer in Massachusetts.

Arguably, if the lawyer had raised his First Amendment claim in his initial Florida disciplinary proceeding, he might have won some points for creativity (or at least unorthodoxy). But by the time the Massachusetts Supreme Judicial Court considered the matter, it was eight years and two Florida disbarments later. Moreover, the Massachusetts court’s repeated citations to U.S. Supreme Courts over three decades shows that the lawyer’s constitutional claim was not even that original. While some might say a procedural lesson to be learned is not to fail to respond to the bar’s initial disciplinary proceeding, the more fundamental lesson is not to practice law when suspended—or disbarred.