A costly mistake is the kind of mistake an attorney is likely to remember, and a wallop for nearly $17,000 in sanctions is pretty costly indeed. Typically such sanctions are imposed against the litigants personally, sapping much of the educational value for attorneys, but a U.S. magistrate judge in North Carolina made the unusual decision to assess sanctions against the lawyer, but not the client, in a recent case, finding that the attorney’s misconduct was not the sort in which a client would typically participate.
Since the magistrate judge in the case, Patrick Auld, cited a fair amount of case law from the Fourth Circuit in supporting his decision, the ruling may well be one that South Carolina attorneys should take note of. A magistrate judge’s opinion is officially a recommendation to the U.S. District Court judge about what sanctions should be levied.
The sanctioned attorney, Bruce Simpson of Charlotte, represented the plaintiff in a workplace discrimination suit. His brief responding to the employer’s motion for summary judgment included a wholly unsubstantiated claim that the employer’s “story of adulterous bathroom sex has been fabricated” to try to justify his client’s termination. Simpson also behaved in an unduly argumentative and sarcastic manner during his client’s deposition, according to Auld’s written opinion.
Attorneys behaving in an unduly argumentative and sarcastic manner during a deposition will, sadly, no doubt be an experience to which litigators everywhere can relate.
Typically, federal courts have deemed clients fully accountable for the conduct of their attorneys, based on theories of agency law—litigants voluntarily pick their attorneys as their representative in an action, and so can’t avoid the consequences of decisions made by the lawyer they chose. But Auld noted that recently a number of Circuit Courts of Appeals appear to have softened that position, finding it unfair to sanction a client who did not influence or participate in the attorney’s misconduct.
The Fourth Circuit has not directly addressed what kind of a standard judges should use when deciding whether to sanction litigants or attorneys (or both), but Auld noted that the appeals court has on a few occasions upheld awards that sanctioned the attorneys but not their clients. In each case, Auld noted, the conduct that drew the court’s ire was not the sort in which a client would typically be an active participant.
In the case before him, Auld decided that absent evidence that the plaintiff encouraged her counsel to accuse her employer of making up the story, the misconduct reflected a lapse in professional judgment by the attorney that wasn’t easily attributable to his client. Auld noted that that was particularly likely to be for a plaintiff, like the one in this case, who had no prior experience as a party to litigation.
Similarly, Auld found no evidence that the plaintiff encouraged her attorney to behave in a rude and abusive manner during the deposition. Although the plaintiff was unhelpful and evasive during her deposition, she lacked any prior experience, and her attorney appeared to encourage her evasions. That’s a rather noteworthy ruling—an attorney, rather than the client, being sanctioned in a situation where the attorney seemed to have coached the client to be obstinate in the deposition.
Of course, attorneys should always strive to conduct themselves in an honorable manner at deposition, and shouldn’t require the specter of sanctions to keep emotional outbursts in check. We may be seeing a move, at least in the Fourth Circuit, towards attorneys bearing the brunt of those sanctions when the high standards of professionalism are not maintained. It’s a trend worth watching, and certainly one to keep in mind.
Follow David Donovan on Twitter @SCLWDonovan