Monday, January 29, 2007
Posted by Alan Childress
UMKC's Nancy Levit kindly passed along this link to the ABA Journal's on-line story about a lawyer [and law professor] who was sanctioned some $17,000 by the Utah Supreme Court for offensive and disrespectful arguments about a lower court in his briefs and oral argument. But the court also dismissed the appeal without considering the merits (apparently acknowledging that the court below had erred, though not intentionally as the lawyer had implied) and affirmed the ruling against his clients. The court was also irked, relates the opposing attorney, by the prof's oral argument style, stating that justices expressed then that “they weren’t accustomed to being lectured in the Socratic method on the proper role of a certiorari court."
The additional decision to dismiss the case without deciding the merits is, to me, a poor choice. Focusing the remedy on the attorney himself is more appropriate. [UPDATE: Carolyn Elefant argued this point too, and first, here, and a commenter disagrees.] It reminds me of the [worse] example of this approach in which a Virginia court of appeals dismissed an appeal as "a nullity" because the lawyer filing it, unknown to client and even lawyer, fell under a 30-day bar suspension exactly during the appeal period.
Of course the courts have the power to treat lawyers as agents of the client in this unrelenting way -- to punish the client for the agent's acts. But they ought to temper that power to the extent possible by exercising their duty to decide. If the Utah court is really saying the party would have won had its representative asked nicer, then the decision comes across to distant observers like me as more protective of its sensibilities than its core functions. I am all for a court policing the temper and civility of its advocates, and support the ethics and good advice of using decorum in the courtroom. But policing it ought not come at the expense of parties who properly invoked its jurisdiction to judge.
The Fifth Circuit, by contrast, recently reversed a sanction of dismissal just because the attorney slipped: “it seems a basic principle of fairness and good judgment that no party should lose a case solely because his lawyer listed the name and address of a law firm above, rather than below, the lawyer's signature." Note that Judge Jerry Smith says "no party should lose...." Sounds right to me. And he adds, the dismissal “must appear to the casual observer to be judicial petulance.” Exactly.
The Seventh Circuit has an agenda to sanction attorneys left and right for barely incomplete jurisdictional statements (prompting Howard Bashman to wonder whether they've "gone off the deep end"), and thus appears to be overly "Socratic" in its own way. But at least it sanctions the attorney and decides.
Are such rulings prime examples of what Nancy Rapoport calls the Judge Judy-fication of Legal Ethics? Here we have, more directly, judges emulating her impatience by swatting lawyers' noses with newspapers -- or in the case of the Socratic professor, making him drink judicial hemlock along with his clients. Just like Judy would.
Maybe her influence extends so broadly since she is more successful via the American yardstick: she makes more money than all of them combined.