LAWYER’S BAD FAITH SANCTIONED

Michael Sean Quinn*

          In the case of Egan v. Pineda #15-2011 (7th Cir. December 23, 2015), the plaintiff—her lawyer (“L”)—not she–was the appellant, accused the appellee and his business of sexual discrimination by creating a hostile work environment. The lengthy complaint made repeated accusations of sexual assault of various kinds. In her deposition, the plaintiff admitted that none of these claims were true.  Here case was dismissed; that was not contested on appeal.
          The issue on appeal was a $5000.00 sanction the district judge has imposed upon L.  For the less knowledgeable, it is worth noting that this is a relatively small sanction for this sort of outrageous error.  
          At two different hearings regarding the imposition of the sanction the district judge asked L how such a thing could have happen.  L gave several “explanations,” including editing error and poor proofreading.
          It is reasonable to speculate that neither the district judge nor the circuit court judge, Posner, J., believed L. Judge described his statements as “pathetic,” and this observation is too kind.  Judge Posner’s opinions is based upon federal law authorizing judges to sanction attorneys who perform acts in litigation “in bad faith,” where it is understood that this phrase refers at least to recklessly making frivolous claims. Chambers v. NASCO, 501 U.S. 32, 45-46 (1991), Johnson v. Cherry, 422 F.3d 540, 548-49 (7th Cir. 2005), and Mach v. Will County Sheriff, 580 F.3d 495, 501 (7th Cir. 2009).
          Are there lessons to be learned here?  Of course, a lawyer should probably not, under most circumstances, file a Complaint this lengthy and detailed, especially in a relatively simple case.   
          To be sure, a lawyer should have a client, or prospective client, tell his/her story at least once, ask questions, and maybe have the story told more than once. Unquestionably, the lawyer should actually look at—watch–the client while he/she is speaking and actually listen, as it were, carefully and  in detail.  What might be called “intuitive listening” is not good enough. A lawyer should not hesitate to cross examine his own client. Gently, of course.
          Possibly, when filing a Complaint with specific facts alleged, a lawyer should sit with the client and actually read the draft to the client and repeatedly ask whether what is asserted is true.  If the lawyer is working from a written alleged summary prepared by the client, the lawyer should do the same with what the client has written.

          With regard to L’s dealing with  the judge: consider telling the truth and most definitely, do not appeal.  L should have considered that he was going to be sanctioned in any case, that he was likely to be reported to and disciplined by the bar, and that he should treat his disgrace as an actual—and not just ostensible–learning opportunity.  Confession can be good for the license.
*Michael Sean Quinn
Law Office of Michael Sean Quinn
1300 West Lynn Suite 208
Austin, TX 78703
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Email: mquinn@msqlaw.com