Federal court releases crackin’ sanctions ruling

I will not seek pardon for the pun. I will also try not to prolong the nature of this post because the opinion that is the subject matter for today is a very good read, worthy of the limelight.

I have written on several occasions about the problematic efforts of two particular members of my profession who so thoroughly hitched their wagons to the idea that the former guy was somehow robbed of a second term in office that it would seem un-thorough of me not to make the time to write about the most significant ruling against them to date.

So, here it is.

Judge Parker, a Michigan federal district judge, has issued today a 110-page order sanctioning Lin Wood, Sidney Powell, and others for their filing, and continued pursuit, of a particular federal lawsuit that was part of the overall effort of lawyers on behalf of the former guy to gaslight the nation. You can read the full opinion here.

For you “bottom line” types, most of the lawyers most egregiously involved in this gaslighting litigation will have to pay the attorney fees of the defendants, will have to get 12 hours of additional CLE (6 of which will be focused on pleading standards and 6 of which will be focused on election law – good luck finding classes that focus on “pleading standards” that is the stuff of law school courses), and are being referred to various state bars for potential disciplinary proceedings.

Until such time as it is reviewed by the Sixth Circuit, which inevitably will happen, this opinion from the Michigan district court could serve as something of a “short-form treatise” on the concept of sanctions and the filing, and continued pursuit, of bogus litigation. In fact, if there were ever to be a Fourth Edition of the book I’ve been honored to co-author over the last decade, this case would likely be a real frontrunner for new content in Chapter 1, the chapter on the investigation necessary to pursue a case to begin with.

We could have a lot of fun pulling quotes from the opinion that demonstrate how irreparably round-the-bend these “Kraken” lawyers were and how they managed to step on rake-after-rake by continuing to say incredibly stupid things online while their case was being decided, but that’s not really all that interesting.

What strikes me as an interesting exercise though (and maybe it only strikes me that way) is if it were possible to boil down the most instructive pieces of wisdom in the 110-page opinion to give a short talk that might be educational to brand new lawyers about how to avoid filing a lawsuit that could get you sanctioned.

So, here goes nothing. (And so that this effort is perfectly clear, everything that follows this sentence shall be excerpts verbatim from the opinion combined into one excerpt – snips and reshuffles are omitted. Reproduction of this excerpt is something for which you could seek the express permission of Major League Baseball, but they will look at you funny when you do.)

[A]ttorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.

For purposes of Rule 11, an attorney who is knowingly listed as counsel on a
pleading, written motion, or other paper “expressly authorize[d] the signing, filing,
submitting or later advocating of the offending paper” and “shares responsibility
with the signer, filer, submitter, or advocate.” In this age of electronic filing, it is frivolous to argue that an electronic signature on a pleading or motion is insufficient to subject the attorney to the court’s jurisdiction if the attorney violates the jurisdiction’s rules of professional conduct or a federal rule or statute establishing the standards of practice.

Even if there are sanctions available under statutes or specific federal rules of procedure, . . . the ‘inherent authority’ of the court is an independent basis for sanctioning bad faith conduct in litigation. To award attorneys’ fees under this “bad faith exception,” a district court must find that (i) “the claims advanced were meritless”; (ii) “counsel knew or should have known this”; and (iii) “the motive for filing the suit was for an improper purpose such as harassment.” When invoking its inherent authority to sanction, “[a] court must, of course, . . . comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.”

[L]itigants and attorneys cannot come to federal court asserting that certain acts violate the law based only upon an opportunity for—or counsel and the litigant’s suspicions of—a violation. The rule[s] continues to require litigants to ‘stop-and-think’ before initially making legal or factual contentions.

[A]n “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions. And the good or bad faith nature of actions or submissions is not what determines whether sanctions are warranted under Rule 11(b)(3). Inferences must be reasonable and come from facts proven, not speculation or conjecture. Pursuant to their duties as officers of the court, attorneys typically do not offer factual allegations that have no hope of passing as evidentiary support at any stage of the litigation. Substituting another lawyer’s judgment for one’s own does not constitute reasonable inquiry.”

As an initial matter, an affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred. Plaintiffs are not entitled to rely on the discovery process to mine for evidence that never existed in the first instance. Attorneys are not journalists. It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences.

An attorney’s right to free speech while litigating an action “is extremely circumscribed.” Something does not become plausible simply because it is repeated many times by many people. An attorney who willingly continues to assert claims doomed to fail . . . must be deemed to be acting with an improper motive.

The nation’s courts . . . are reserved for hearing legitimate causes of action. Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order. Here’s why. America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

10 Things I Thought I Would Write About This July, But Didn’t.

So, anyone I might have hooked into caring about this site in May and June 2021 likely stopped checking for July content 1 or 2 weeks ago. Longer-term, repeatedly neglected, readers are likely still hanging in there (and forever earning my esteem).

There have been a bunch of times that I thought I was going to bust something out on here this month, but life, and work, and doom-scrolling, and an honest-to-goodness vacation have gotten in the way. On the doom-scrolling front, we’re back to having to do a bunch of that because the people out there with access to the vaccine but who are refusing to take it are really doing all they can to ruin this for everyone else. In states like Tennessee, the problematic Republicans that run things are actively trying to stop young teenagers from getting this vaccine by going so far as to try to stop the dissemination of information to teenagers about any vaccines of any sort. Sigh.

So, this won’t quite make up for the dry spell, but here are quick entries on the 10 things I thought I would write about this July, but didn’t.

(1) The Florida Supreme Court earlier this year did some rule-making that has resulted in Florida lawyers being unable to get CLE credit for any CLE sponsored by the ABA. Sounds absurd, right? It is. I am very proud to say that, among the many public comments filed by lawyers and groups of lawyers attempting to explain to the Florida Supreme Court why it should rescind its new rule, is one from the Association of Professional Responsibility Lawyers. . You can read that comment here. If you are interested in reading all of the comments – which are overwhelmingly opposed to the Court’s actions, you can get access to them here.

(2) Speaking of Florida, backwards as it can be in a number of respects (looking mostly at you Governor DeSantis), it has dipped its toe in the water of joining the ranks of Utah and Arizona in potentially bringing about drastic change in the legal landscape by allowing for nonlawyer ownership of providers of legal services to operate through a “sandbox” approach. You can read more here.

(3) Speaking of Utah and Arizona, we have statistics about the kinds of entities that have been approved in those states for performing legal services either through Utah’s sandbox or just generally in Arizona. A very good article providing an overview of the happenings in those two states can be found here.

(4) Staying out West, but angling a bit northward, the Oregon Supreme Court has issued a good new opinion on whether a lawyer can rely upon RPC 1.6 to attempt to disclose client confidential information to respond to online criticism. Spoiler alert: still a no-no.

(5) One of the things that we’ve discussed here before that a lawyer can do in response to unfair online criticism is to file a lawsuit about it. I’ve pretty steadfastly made the point that doing so likely will only make things worse. Speaking of making things worse by filing a lawsuit because you are mad about how you are being treated online, the twice-impeached former President of the United States filed a class action lawsuit against each of Facebook and Twitter claiming that their decision to ban him from their platforms was unconstitutional. Remarkably, Trump found even more lawyers to be willing to debase themselves and threaten any reputation that might have otherwise established to make highly frivolous arguments in a lawsuit – this time trying to argue that Facebook and Twitter are essentially the government and should have to comply with the First Amendment.

(6) Speaking of lawyers debasing themselves for Donald Trump of all people (and that’s still at many times the most staggering part of all of this, him? This is the guy that so many people are so willing to burn it all down for?), a raft full of lawyers involved in the “Kraken” lawsuits in Michigan had their sanctions evidentiary hearing and, based on all the reports you can go read, it went about as well for them as everything else has gone in the Kraken lawsuit. Then, of all things, one of the most prominent of the lawyers in the cross-hairs went and posted a portion of the video pf the proceedings in violation of the court’s explicit order not to do so. This has led to a follow-up show cause order regarding contempt. Most recently, the judge issued an order declining to find contempt but asking for an explanation for why discipline should not be imposed. I’ve written in the past about why we shouldn’t just be okay with the notion that courts are saying these public proceedings cannot be taped and re-broadcast but there’s a time and a place for most things. When you are already staring down the barrel of the kind of sanctions these lawyers might get, that certainly wasn’t the time.

(7) Sticking to stories with a political twist, President Biden has signed an omnibus Executive Order that attempts to do an awful lot of things.. One of the things it does is impose some prohibitions on requiring employees to sign non-compete agreements. I was among several lawyers quoted in a Law360 Pulse story about how that portion of the EO could impact the legal profession. Here is a link to the article itself, but you have to be a subscriber to see it. For the rest of you, I’ll just say that, for my part, I said the following:

The direct and immediate impact seems to be minimal because, as you already know, lawyers are ethically restricted from agreeing to noncompetes, and even prohibited from trying to ask a lawyer-hire to agree to them.

When President Biden says something like “the era of it being difficult for someone licensed to do something in one state to get a license in another state needs to come to an end,” why shouldn’t that apply to lawyers too? There are significant discussions going on in the profession about how to better connect willing lawyers and interested potential clients when consumers are going unrepresented and lawyers are out there who don’t have enough work.

(8) A month or two ago, I wrote a bit on how New York and D.C. were putting out some proposed revised approaches to a rule that would help address harassment and discrimination by lawyers, but that are trying to be designed to avoid the “alleged” problems of ABA Model Rule 8.4(g). I neglected at the time to say anything about the fact that Connecticut was working on something in that regard as well. In June 2021, the Connecticut Supreme Court has adopted the proposed revision, and a new Rule 8.4(7) will go into effect in the Nutmeg State on January 1, 2022. You can check out the full language of the rule here.

(9) Big news was made recently in Texas with a decision from the Fifth Circuit Court of Appeals finding that mandatory bar membership in Texas was unconstitutional, in the current form of the Texas Bar, because of how the Texas Bar uses some of the dues of members to undertake political activity. I’ve written a few times over the years about the important distinctions that exist between states with unified bars, where membership is mandatory, and states where the bar association is just a voluntary membership organization. More recently, the Sixth Circuit wasn’t as friendly to an Ohio lawyer’s attempt to challenge mandatory membership in the Ohio bar. An ultimate ruling on the issue from the U.S. Supreme Court seems inevitable at this point. Given the current make-up of the Court, the era of mandatory bar associations is likely coming to an end.

(10) Remember three paragraphs ago when I said there was a time and a place for most things? When it comes to lawyers and using marijuana, the New York State Bar Association has released a new opinion that says the time is now and the place is New York.

So, those were 10 things I thought I was going to write about in July but I didn’t. Or did I?

(N.B. I will return before the month ends, and I will write a little bit more about that last item.)

The world needs a “healthy dose” of lots of things.

Frankly, civil behavior by lawyers toward other lawyers certainly is on the list of things the world needs a healthy dose of, but, well, let’s just say maybe it’s not a top-10 item on the list.

So, the point of today’s post is not to be the guy who claims that lawyers shouldn’t have to be civil to each other. I am not that guy. Civility is a net positive in the profession.

What I do want to write a bit about though, because discussions about the need for increased civility in the legal profession are all the rage right now (and, in fact, I’m going to be part of a panel discussion later this month on the topic, the difference between reminding lawyers of the need to treat human beings with respect and “weaponizing” the idea of civility to hamstring the ability of a lawyer to pursue a client’s claims and rights, particularly when that can tend to unfairly prejudice the “Davids” of the world in favor of the already-favored “Goliaths.”

I also want to stress the fact that there is already a rule of professional conduct that is sufficient to address those aspects of incivility that should be treated as unethical.

Let’s talk in varying degrees of detail about three of the most recent news items driving the civility discussion and identify which one of them I have some real problems with.

The quote in the title of today’s post comes from this ABA Journal article about remarks made by the Chief Justice of the West Virginia Supreme Court in connection with that court’s proposal to amend the attorney oath of office to better mandate civility.

Much more media attention rightly has been focused upon this ruling from the D.C. District Court admonishing a high-profile Big Law attorney (who actually had to step away from a Presidential appointment in the new administration because of this matter) for her characterizations of the conduct and demeanor of opposing counsel during a deposition, a videotaped deposition. Whether this ruling is correct in terms of the application of Rule 11 is not something I want to spend any time discussing. Whether this ruling properly points out the kind of things a lawyer shouldn’t do is.

The core description of the situation can be understood from the court’s opinion itself which indicated that each of the following were statements made by lawyers in the record about the conduct of their opposing counsel during the deposition but for which the Court could find no support in viewing the videotape of the deposition: opposing counsel was “agitated and combative,” opposing counsel “lashed out at the witness,” opposing counsel “became unhinged … and repeatedly attacked and baselessly threatened to seek sanctions against the witness and counsel,” opposing counsel engaged in “browbeating and disrespectful behavior,” opposing counsel was “indignant and adversarial,” “agitated and aggressive,” and opposing counsel “demonstrated a general lack of respect towards a professional adversary.”

Mischaracterizing the way another lawyer has behaved is certainly troubling conduct. While perhaps some of the descriptors are entirely subjective, not all of them are. The fact that, as the court points out, the deposition in question was videotaped also makes it pretty hard to feel any sympathy for the lawyer who ended up sanctioned after they persisted in trying to say that the descriptions of the other lawyer, which everyone else seems to agree were not reflected on the videotape, were somehow justified.

But I also want to be clear about what the case did not involve which is an even more toxic approach to mischaracterizing the behavior of another lawyer but which only “works” if the deposition isn’t being videotaped. We likely all have encountered a lawyer who, back in the days when videotaping depositions was a much less frequent experience, would make statements and assertions about events to make a “record” on paper of something happening that was not actually going on. Statements such as “please stop raising your voice at the witness,” or “you need to calm down, you’re way too worked up,” “I’d ask you to stop rolling your eyes at the witness’s answers,” or “what was that gesture? No one appreciates that” and the like can be a “go to” approach for trying to gaslight later readers of an otherwise dry deposition transcript.

Now, contrast the D.C. case with this ruling from a district court judge in Florida demanding that attorneys representing both sides in a lawsuit against a cruise line refile past filings after removing all of the language that the judge found inappropriate. (Former APRL President Jan Jacobowitz has written a bit about this ruling here.)

In the Florida case, the court explained its concerns as follows:

The Florida Bar Oath of Admission, which every attorney
licensed in the state of Florida swears to obey, states in part,

To opposing parties and their counsel, I pledge
fairness, integrity, and civility, not only in court,
but also in all written and oral communications. I will
abstain from all offensive personality and advance no
fact prejudicial to the honor or reputation of a party
or witness, unless required by the justice of the cause
with which I am charged.

The Florida Bar’s Creed of Professionalism provides further
clarity on the manner in which attorneys should conduct themselves
in the practice of law. It states, in part, “I will abstain from
all rude, disruptive, disrespectful, and abusive behavior and will
at all times act with dignity, decency, and courtesy.”

Upon review of the record and the parties’ filings, this Court
notes that the conduct displayed by counsel for both Plaintiffs
and Defendant runs afoul of the tenets of professionalism set forth
by the Florida Bar.

The problem, of course, comes in reading further the examples that the court cites which almost exclusively do not involve the lawyers denigrating or being uncivil to each other, but rather involve characterizations by lawyers of the conduct of the opposing party itself. For example, the Florida judge took umbrage at:

First, Plaintiffs dedicate an entire section of their Motion
for Partial Summary Judgment to what they entitled “ROYAL
Defendant of “lying to authorities,” “attempting to deceive this
Honorable Court,” and engaging in, “corporate misconduct [which]…
appears to know no bounds” [D.E. 128]. Plaintiffs further accuses
Defendant’s Captain of lying to the U.S. Coast Guard, and state
that the Defendant “doubled down on the Captain’s lie to the Coast
Guard by again lying to a United States Federal District Court.”
Plaintiffs further claim that Defendant’s ‘lies’ were “the genesis
of the Puerto Rican authorities ultimately pressing (baseless)
criminal charges against Mr. Anello,” and ultimately accuse the
Defendant of making “merciless efforts to frame an innocent man,
intentionally destroy evidence, and mislead this Honorable Court
(and the U.S. Coast Guard and the Puerto Rican authorities).”

The problem with most of the language that this court found problematic is that the court seems unwilling to acknowledge that there is fundamentally a difference between saying that lawyers should generally treat other lawyers, as well as other people involved in proceedings, with civility and essentially hamstringing a lawyer from being able to pursue a client’s case. Now, admittedly, I have no insight into any of the players in the case nor any reason to know if anyone was not telling the truth, but, fundamentally, the notion of civility must not be used to prevent lawyers from being able to point out when an adverse party is actually lying.

There are, in short, very few ways to inform a court that you believe that your client’s litigation adversary is lying in a way that is guaranteed to be viewed as “civil.” There is no doubt that accusations of lying are made far too casually by members of our profession, but that does not mean that there are not instances when litigants are, in fact, lying and lawyers must be free to plainly and directly say so when their client needs them to do so.

And it is for that reason that I tend to be wary of efforts to expand existing ethical prohibitions, or adopt new rules, in the name of encouraging civility. I tend to think that the rules already address what needs to be prohibited through Model Rule 4.4(a)’s prohibition that in representing a client “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….”

Any jurisdiction that has that version of RPC 4.4(a) has what it needs to get at the kind of uncivil behavior that should be curtailed.

Cute story? No. Chance for Cutestory reference? Yes.

♫ You’re a crook, Captain Hook / / Judge, won’t you throw the book at the pirate… ♫

For me, much as I’m certain it likely is for you, it is now “Day Something” (I’ve lost track) of surviving a pandemic. I hope that you are doing all that you need to do to both stay safe and take the appropriate steps to value your mental health and overall wellness.

What I had originally envisioned for a post for today was going to be something that sort of collected a variety of instances of attorneys being jerks and emphasizing how incongruous such behavior is with our current reality, but Michael Kennedy, the chief disciplinary counsel for Vermont, has already done that better than I might have, so here’s a link to his post on that subject.

Instead, I’m going to talk about a very specific, pre-pandemic incident that involves a maritime lawyer and, thus, gives me an excuse to talk about bingeworthy television, and specifically, my absolute favorite comedic television program of all time, Arrested Development.

We certainly live in the Golden Age of Television and will do so for at least a little bit longer until the current shut down in production schedules translates in the future to a lack of new content. But even before this true golden age of television, Arrested Development came on the scene. It hit me in all the right spots. So, if you are somehow desperately trying to figure out what to watch in your spare time and have access to Netflix and haven’t yet watched all of it – please feel free to do so.

Now, I segue from this into how I tie this even tenuously to legal ethics. This past week Law360 released a story, and the ABA Journal online followed with one of their own, about a maritime lawyer who got sanctioned in the form of a $1,000 fine for his bad behavior during a deposition as well as the opposing party’s attorney fees associated with certain aspects of the proceedings which will likely amount to much more than $1,000. Specifically, he interrupted the deposition questioning 145 times including 106 rather lengthy objections. This happened in federal court in Louisiana, one of the few places in the United States where maritime lawyers could thrive because of the robust seaport there.

The order is made available through both web portals but the ABA Journal requires no subscription so it’s likely easier for you to read that one here.

Because of the impact that Arrested Development had on me, I will forever associate being a maritime lawyer with Chareth Cutestory – a pseudonym used by Michael Bluth when he tried to flirt with Maggie Lizer, a lawyer played by Julia Louis-Dreyfuss.

It feels particularly on brand to reference that fictional plotline because (a) the real maritime lawyer involved was named Salley (but not Sally Sitwell) and (b) it feels like if Michael Bluth had actually been permitted to be in a deposition pretending to be a maritime lawyer then he could have ended up with a judge issuing a ruling that said something like this as well:

Of the 255-page transcript of the deposition, Salley appears on 170 pages. Salley objected 106 times, 52 of which were lengthy speaking objections. There are long, speaking objections that cover entire pages of the transcript. One speaking objection and Salley’s attendant argument, which followed a question asking the deponent when an affidavit was signed, covers in excess of six pages of the transcript….

That is simply a smattering of cites to Salley’s objections from the transcript. He also instructed the witness not to answer 16 times…. This Court’s review of the record reveals that none of these instructions was based on a valid reason under Rule 30.

And if you, like many, need a little visual help in getting the whole oeuvre of both this post and the Chareth Cutestory subplot, here you go.

(P.S. Stay safe.)

(P.P.S. And if you take any depositions in the next few weeks by Zoom, or Skype, or WebEx or telephone or otherwise, don’t do the kind of stuff (like speaking objections) that will get you sanctioned.)