It is not out of the ordinary for someone to take their frustrations out via email.1 We have all been victims of the urge to type out a passive-aggressive message and hit send. But what happens when a lawyer sends such an email to a member of a judge’s staff?
The Lawyer’s Poor Email Etiquette
Recently, a district court judge sanctioned counsel of record for sending an unprofessional email to the judge’s clerk. See Williams v Biomedical Research, No. 22-30064 (5th Cir. Aug. 24, 2022). The lawyer emailed the judge’s career clerk to vent about her frustrations with the slow place of the litigation. Specifically, the lawyer complained that the parties had been waiting for almost a year for the judge to rule on a motion for summary judgment. The lawyer’s email also suggested that the judge’s staff bore responsibility for the mismanagement of the court’s docket. A few days later during a pretrial conference the judge confronted the lawyer with the unprofessional email. Rather than provide the lawyer with advance notice and an opportunity to prepare a response, the judge swiftly sanctioned the lawyer and ordered that the lawyer complete an additional five hours of continuing legal education in professionalism.
The lawyer appealed. On appeal, the lawyer argued that the (1) the sanctions were imposed without due process of law and (2) that her conduct was not sanctionable.
The United States Court of Appeals for the Fifth Circuit vacated the district court’s order and remanded the matter for further proceedings. The court first determined that the judge ordered sanctions under its inherent power which is not codified in status or court rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). However, the judge failed to provide adequate advance notice to the lawyer. The law requires that a judge provide a party facing sanctions with “adequate notice and an opportunity to prepare a response.” 1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1292 (5th Cir. 1991). According to the Fifth Circuit, the judge’s imposition of sanctions failed to comply with due process since the judge gave the lawyer no advance notice and the lawyer only got a few minutes to respond to the allegations.
The Fifth Circuit did not opine on whether the lawyer’s conduct itself was sanctionable. Rather, the Fifth Circuit remanded the matter to give the district court an opportunity to reimpose sanctions, if it should choose to do so, in a manner consistent with due process. Whether the lawyer’s conduct should subject her to sanctions depends on whether she sent the email in bad faith. See Dawson v. United States, 68 F.3d 886, 895 (5th Cir. 1995) (finding that a required element for the imposition inherent-power sanctions is that the lawyer acted in “bad faith.”) On remand, the lawyer will have the advance notice and the opportunity to respond to the court’s claim that she acted in bad faith prior to the imposition of sanctions.
Although the question of whether the lawyer’s conduct itself was sanctionable is still up for debate, it is clear that a judge cannot blindside a lawyer with the imposition of sanctions in the middle of a hearing.
- Special thanks to our Fall 2022 Research Assistant Alexis Topel for researching and writing the initial draft of this post. ↵