Have you ever wondered why courts do not order sanctions more often? Putting aside the litigation flurry since the election, there seem to be more cases where sanctions might be a good way to tell the attorneys that their case is not worthy of expending judicial time and resources, especially in these days of COVID-19. Reading advance sheets, various articles, and remembering my days in court, I am puzzled as to why the hammer doesn’t come down more often on ridiculous, frivolous litigation, as if the courts don’t have anything else to do.
Let me give you one example. A case was tried to a jury on a matter of pen-snatching. Yes, you read that right, pen-snatching. A plaintiff attorney (who else?) sued New York City and two police officers. The basis: when the attorney tried to serve a lawsuit on the department, the office for service of process was closed. One police officer grabbed the attorney’s pen as he tried to write down the officer’s name and shield number. The pen was returned to the attorney within minutes.
The attorney had alleged constitutional violations, as well as assault and battery and other charges. The jury awarded the plaintiff lawyer $1 for the pen-snatching. The attorney sought more than $44,000 in attorney’s fees. The district court decided that “sauce for the goose is sauce for the gander,” and awarded the attorney $1, finding the case trivial. Naturally, the attorney “respectfully disagrees” with the fee award. When has an attorney who wasn’t awarded fees or they were awarded in a lesser amount than sought ever agreed with the decision?
This is just another example of how foolish lawyers can appear and do appear to the nonlawyer population. As the district court said, while the verdict may be personally meaningful to the plaintiff, no one else cares. No one else should care except for the waste of judicial time and resources in trying this case. What do you think the jury thought having to sit through this dreck in the middle of a pandemic? Could the award of $1 instead of the more than $44,000 sought be an implicit sanction?
And sanctions aren’t just for lawyers. The Kentucky Judicial Conduct Commission took a trial court judge to task for intemperate behavior, sanctioning him for, among other things, a temper tantrum on the bench.
One of the many things we tell clients not to do: “Don’t do anything that might appear in the news media.” Do we follow our own advice? Maybe, maybe not. Here’s a cautionary tale for all of us. Renowned LA lawyer Tom Girardi is in a pickle in Chicago. He’s alleged to have siphoned off settlement funds due to his clients to the tune of $2 million. Not only is Girardi known in his own right, but he’s also known as the husband of Erika Jayne, one of TV’s Real Housewives of Beverly Hills. The Girardis do not live in Beverly Hills, by the way, and Mrs. Girardi has recently filed for divorce.
The court in Chicago overseeing the distribution of settlement proceeds has frozen all of Girardi’s assets and those of his firm. It’s not a pretty picture. Creditors are threatening to file an involuntary bankruptcy petition.
Girardi is in a world of hurt right now. Not only could he face discipline by the State Bar (and we all know or should know what a dim view bar discipline peeps take of claims of misappropriation), the federal court referred the matter for possible criminal investigation. (Shades of Michael Avenatti, remember him?) And the U.S. Attorney’s office in Chicago has asked the court to unseal a court filing in which Girardi’s law firm admitted that the $2 million appeared to be missing. This is going to go way beyond sanctions. Loss of bar license and reputation, among other things, seem to be in jeopardy.
Remember the childhood phrase “Liar, liar, pants on fire?” Hopefully, you will get the reference in this opinion by the Ohio Supreme Court. It had previously disciplined the lawyer (suspending him from practice for a period) for misconduct for engaging in a sexual relationship with an indigent client in a criminal case. The attorney lied about it to the court along with other offenses. Apparently, not feeling sufficiently chastised, the attorney continued his merry way, right after being suspended, engaging in the same type of conduct that got him suspended in the first place: lying to yet another court and his clients about the suspension, forging his client’s name on a settlement check without authority to do so and other folderol, not designed to improve his reputation with the court.
The court, (deciding that the attorney was, to use my client’s phrase and not the court’s “a lying sack of sh–”) found a pattern of misconduct that continued from his first disciplinary suspension, lying to the trial court on multiple occasions. “We can only assume that [the attorney’s pants are charred from the number of falsehoods that he has perpetuated” in his prior disciplinary and the current one. Some sayings still hold true.
And last, but not least, a shout out to LawProfBlawg (I am ignoring the “Dr.” in front of the name) who criticizes the dismissive attitude toward Dr. Jill Biden using her “Dr.” in her title. As the Prof points out, this is yet another example of the often-demeaning attitude toward women’s achievements on their own. It’s nothing new, unfortunately, but that attitude must stop and the way to do that is to push back against such nonsense. Dr. Biden is the incoming First Lady and will continue to teach full time. What about the incoming Second Gentleman, Douglas Emhoff, who will be teaching at Georgetown? Will he be able to fulfill his duties as Second Gentleman while teaching? Would anyone ask that question? I doubt it.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.