Tag Archives: sanction

Lawyer’s misconduct did not prevent class action certification

In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.

In this case, the 7th Circuit Court of Appeals determined  that class counsel’s faxing of unsolicited advertisement was misconduct.  The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members.  Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.

I raise this case because it raises the issue of attorney misconduct.  First of all, there are across-the-states ethics rules that govern attorneys’ conduct.  You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.

As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action.  The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct.  Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.

In fact, there are ethical rules that discuss the reporting of misconduct.  In Minnesota, Rule 8.3 discusses the reporting of professional misconduct.  Rule 8.3 states, in relevant part,

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class.  In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).

So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper?  The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.

via Courthouse News Service.

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Filed under Appellate, attorneys, courts, legal decision, Minnesota, rules, sanctions, Supreme Court

Judge Admonished for Comments About Victim’s ‘Technical Rape’ and Lack of Body Shutdown

You may remember the argument, which caused public outrage, over the belief that a body just “shuts down” when a woman is not subjected to real rape.  A judge used this same language in a California case, and was admonished for showing bias – a trait that runs afoul of judicial ethics.  These are the relevant parts of the article published in the ABA Journal News.

Judge Derek Johnson, from Orange County, California, was publicly admonished for saying a sexual assault victim had suffered only a “technical” rape and didn’t display vaginal damage characteristic of rape victims he had encountered as a prosecutor.

Judge Derek Johnson of Orange County had advanced his theory on body shutdowns during rape in a 2008 sentencing hearing, according to the opinion (PDF) by the California Commission on Judicial Performance.  The judicial discipline opinion has a transcript of his explanation why:

Johnson: “I spent my last year and a half in the DA’s office in the sexual assault unit. I know something about sexual assault. I’ve seen sexual assault. I’ve seen women who have been ravaged and savaged whose vagina was shredded by the rape. I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight. And to treat this case like the rape cases that we all hear about is an insult to victims of rape. I think it’s an insult. I think it trivializes a rape.”

Johnson: “I just found the threats to be technical threats. I found this whole case to be a technical case. The rape is technical. The forced oral copulation is technical. It’s more of a crim law test than a real live criminal case.”

The commission said Johnson’s remarks reflected biased and insensitive views about sexual assault victims who do not “put up a fight.” Johnson had apologized for the remarks to the commission, saying he was frustrated by a sentencing request he considered inappropriate under the law. He remains on the bench.

via Judge Admonished for Comments About Victim’s ‘Technical Rape’ and Lack of Body Shutdown – News – ABA Journal.

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Ability to Pay considered for sanctions

As an attorney that has dealt with reducing costs for my clients based on ability to pay, it is interesting to see that other courts (9th Circuit Court of Appeals) have applied this same deference in other situations.  In this case, a lawyer was sanctioned by the court, but was unable to pay.

The ABA Journal writes,

Before imposing a financial penalty that a lawyer might not be able to pay, a federal district court can consider the impact on the attorney, a federal appeals court has ruled, giving a California lawyer—who said he made less than $20,000 annually—another chance to make his case for a reduction in a sanction of over $360,000 for pursuing frivolous litigation.

The San Francisco-based 9th U.S. Circuit Court of Appeals said it is remanding the Gregory Melvin Haynes matter because it appears that the district judge who sanctioned him under 28 U.S.C. § 1927 mistakenly thought the court had no discretion to consider the attorney’s financial situation. However, the district court has discretion to do so—just as it has discretion to hold a lawyer accountable, as it did in Haynes’ case, for the opposing side’s litigation costs, explained the appeals court in a Monday opinion (PDF).

Haynes, who had sued the city and county of San Francisco as well as a number of individuals over a psychotic woman’s involuntary hospitalization, engaged in “a wide variety of incompetent and unprofessional actions,” the 9th Circuit noted.

“We now hold that a district court may reduce Sec. 1927 sanctions award in light of an attorney’s inability to pay. Because the district court appeared to believe that it was without discretion to reduce the sanctions award on this ground, and accordingly failed to consider whether to exercise that discretion, we remand for further proceedings,” the appeals court wrote.

It said this is the first time the issue has been considered in the 9th Circuit, which is following the same approach previously adopted by the New York City-based 2nd U.S. Circuit Court of Appeals. The Chicago-based 7th U.S. Circuit Court of Appeals takes a different view of the issue, Trial Insider notes.

“We do not suggest by this holding that when the district court decides to reduce an amount on account of a sanctioned attorney’s inability to pay, it must reduce the amount to that which it determines that the attorney is capable of satisfying,” the opinion continues. “Just as it is within the discretion of the district court to decide whether to reduce the amount at all, the amount to which the sanction will be reduced is equally within the court’s discretion.”

via 9th Circuit Says Court Can Consider Ability to Pay, Orders Rehearing re $360K Attorney Sanction – News – ABA Journal.

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