Friday, October 24, 2008

Like Diamonds and Discarded Plastics: Second Circuit Refuses to De-Publish Sanctions Order After Parties Propose Settlement

Posted by Alan Childress

An interesting story is on Law360.com here (for full article, free trial reg. req'd -- or Download sanctions.doc). It is entitled A Blot on Careers:  Sanctions Can Haunt Lawyers.  In it, author Sara Stefanini reports on a decision this week by the Second Circuit, rejecting a motion by attorneys seeking to erase a sanctions order of over $64,000 in exchange for a settlement with the complaining party. Settlement was428206_eraser_2 made on the condition that the Second Circuit vacate the sanctions and direct Westlaw, Lexis, and others to de-publish all record of the sanctions. 

The court refused. Stefanini writes, "While it is not unusual for attorneys to ask that their names be removed from sanctions orders or appeal the actual decisions, attorneys found it interesting that the lawyers in this case had attempted to use the settlement to overturn the sanctions, as opposed to appealing the actual decision to punish them."  Much of the article is about the extent to which public sanctions affect careers in the long run.  One view quoted was our own Mike Frisch's:

The attempt to eliminate the sanctions from the Internet is understandable, but the appeals' court's response comes as no surprise, legal experts said.

“Obviously in the modern world where there's just a ton of easy access to sanctions decisions and they get on the Web quickly, so it can affect the reputation,” said Michael Frisch, an adjunct professor of law and ethics counsel to the Georgetown University Law Center. “But I think the Second Circuit was right in saying that they can't be telling LexisNexis and other publications to undo what has been done.”

http://lawprofessors.typepad.com/legal_profession/2008/10/second-circuit.html

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Comments

Here is another example:

http://www.ctlawtribune.com/getarticle.aspx?id=31585

Stephen

Posted by: FixedWing | Oct 25, 2008 7:10:32 AM

Wow, thanks Steven. That CT story is amazing. Should there ever be a statute of limitations on INFORMATION?

Posted by: Alan Childress | Oct 25, 2008 8:05:13 AM

How can there be a statute of limitations in information? Once it is out there, it is impossible to take back. Even if she were successful in seeking to have the various jurisdictions delete their reports, it still will be readily available by those organisations on the Internet which cachet this data. The genie will not go back in the bottle.

Ms. Shea’s real complaint is not against the publication of this information, but rather, the ready availability of this information. Ms. Shea took appeals from those decisions and there are published cases. No one is talking about razor blading the reporters. Lawyers will still be able to find the cases via Westlaw and Lexis. Only those who lack the resources to find those cases would be affected. So her argument is really against the free flow of information. And for once, I have to agree with Mr. Bowler. The information is made available for a reason.

Actually, I find myself in Ms. Shea’s position. I have been similarly disciplined by New York and the District of Columbia following discipline in Connecticut. New York published a case about me which showed me in a poor light. The District of Columbia Board on Professional Responsibility did likewise, only in that report I look even worse. Then the Bar Counsel published a synopsis of their report in the Washington Lawyer which was even more one-sided than that. The District of Columbia Bar is a captive bar and the Court of Appeals has so far stood behind their man.

The only problem is that the Connecticut discipline is still under appeal. So what happens now if the Connecticut discipline is vacated by the appellate court? How is the damage to my reputation to be undone? As Ms. Shea points out, reports of disciplinary action are almost guaranteed to destroy a career.

Stephen

Posted by: FixedWing | Oct 25, 2008 2:07:43 PM

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