Seventh Circuit Clarifies That Lawyers Can Appeal Nonmonetary Sanctions

25 May 2016 Wisconsin Appellate Law Blog
Author(s): Thomas L. Shriner Jr

Imagine that, at the end of a case, the judge decides to impose sanctions on you for the way in which you have handled discovery, or done something at trial. In the order requiring you and your client to pay your opponent some money, the judge holds forth at length as to the ways in which your conduct has fallen below the standards of appropriate professional behavior, including saying that your actions reflected dishonesty or were taken in bad faith. You want to appeal the sanctions order, but your client has had enough of the case and pays the entire financial portion of the sanctions order. Can you still appeal the judge’s finding that you have misbehaved in a way that is improper and sanctionable?

Your natural reaction is likely that of course you can appeal the nonmonetary sanction. How else can you rescue your reputation from the harm worked by the sanctions order?

Yet, until the May 23 decision in Martinez v. City of Chicago, (7th Cir. No. 15-2752), the Seventh Circuit’s case law would likely not have permitted you to appeal the nonmonetary sanction.

The doctrinal trail begins with Bolte v. Home Ins. Co., 744 F.2d 572, 753 (7th Cir. 1984), which held that “critical comments by a district judge” are not appealable orders. In Bolte, the judge had issued no sanctions order but had criticized a couple of lawyers while ruling on another motion. Then, in Clark Equip. Co. v. Lift Parts Mfg. Co., 972 F.2d 817 (7th Cir. 1992), the district court imposed sanctions in an order that was critical of the attorney’s conduct. The client settled the case and agreed to pay the sanctions, leading the Seventh Circuit to vacate the sanctions order as moot, but not the lower court’s reprimand of the lawyer. The court cited the inapposite Bolte for the proposition that “an attorney may not appeal from an order that finds misconduct but does not result in monetary liability, despite the potential reputational effects.” Id. at 820.

A very similar situation arose in Martinez. The district court imposed both monetary and nonmonetary sanctions on a lawyer in the Cook County prosecutor’s office for discovery abuse in a civil case to which the office was a witness whose files had been subpoenaed. The office paid the monetary sanction, but the lawyer appealed, seeking to defend her professional reputation. The plaintiffs moved to dismiss the appeal for mootness, relying on Clark.

In an opinion by Judge Richard Posner, the Seventh Circuit overruled Clark, noting that the case law in eight other circuits disagreed with it. So now it is clear that a lawyer in this situation can appeal a nonmonetary sanction. Unfortunately for the appellant, the court (with its jurisdiction of the appeal secure) found the district court’s criticisms of her behavior “apt and accurate” and affirmed the court’s exercise of discretion in entering the sanctions order.


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