Legal ethics

Some quick sanctions updates for your reading pile

I know from years of representing lawyers that when you are facing sanctions against you it is awful difficult to spend much time thinking about things other than what is going to happen to you. So, although there are a lot more important things going on in the world right now, today’s content is just a quick update on developments in two high-profile sanctions cases I’ve written about in the very recent past here and less recent past here.

First, the ChatGPT lawyers in New York ended up being sanctioned only $5,000 in aggregate for their conduct in using fabricated cases in their briefing to try to avoid dismissal of their client’s lawsuit.

In addition to the paltry monetary sanction, the Court did impose non-monetary sanctions as well. A letter of apology of sorts to the lawyers’ client, and a requirement that the lawyers send letters to each of the real judges to whom they attributed fake judicial opinions. That second seems a little bit unnecessarily cute to me in terms of not serving much real purpose. Those requirements though were likely posed because the court did find bad faith on the part of the lawyers. The monetary sanction was as paltry as it was it appears mostly because (1) defense counsel never asked for any award of their attorney fees; and (2) the full opinion is pretty devastating for the reputations of the lawyers involved and will likely cost them economically for years to come.

You can read the full opinion here.

Second, the Kraken lawyers have gotten the ruling from the Sixth Circuit on their appeal of the sanctions awarded against them for their pursuit of litigation in Michigan where they sought to overturn the outcome of the Presidential election in that state.

For the high-profile lawyers involved, the Sixth Circuit ruling is pretty excoriating but does reduce the financial price of the conduct down from $175,000 or so to about $151,000. For two of the much lesser-known lawyers, the sanctions ruling was overturned completely based on their lack of meaningful involvement.

What might end up being the most discussed piece of the Sixth Circuit opinion for years to come, however, is this paragraph that shows up very early in the court’s evaluation of the district court’s ruling:

As an initial matter, the district court held that the attorneys filed their suit for an improper purpose, in violation of Rule 11(b)(1). Specifically, the court asserted that “what very clearly reflects bad faith is that Plaintiffs’ attorneys are trying to use the judicial process to frame a public ‘narrative.’” But another word for “framing a public narrative” is speech; and Rule 11 cannot proscribe conduct protected by the First Amendment. True, an attorney may not say whatever she likes inside a courtroom. See Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005). But an attorney’s political speech outside a courtroom—including political speech about a lawsuit—is irrelevant to a Rule 11 inquiry about the suit itself. To the contrary, parties and their attorneys are free to use litigation “as a vehicle for effective political expression and association[.]” In re Primus, 436 U.S. 412, 431 (1978). That is as true in election cases as in any other case.

The full opinion is pasted below.