“We have no idea whether [Plaintiff] had a good claim against [Defendant]–but we do know that, if she had, [her lawyer] massacred it.”
So says Judge Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit, in a decision issued last month. That decision details an unfortunate pattern of conduct by a lawyer representing a woman in an employment discrimination suit against the Navy. Among other things, the lawyer (a) treated the initial lawsuit in district court as an “appeal” when it quite obviously wasn’t; (b) argued that judgment should be granted in his client’s favor because she was too sick to participate in discovery; (c) didn’t do anything in the case for over a year, leading to its dismissal for non-prosecution; (d) filed an “ex parte” motion to vacate the dismissal of his case, arguing that a clearly constitutional rule was unconstitutional (without explaining why); (e) filed a nonsensical appellate brief; and (f) declined to file a reply on appeal or seek oral argument. The Seventh Circuit, shocked by performance that it called (among other things) “wretched,” ordered the attorney to show cause why he should not be suspended from practice or disbarred. Easterbrook reasoned that the attorney’s conduct “implies that [he] is not competent to protect the interests of litigants in federal courts.”
One would expect this kind of performance to be unusual in federal courts. Unfortunately, it isn’t. Most everyone who has worked in chambers can tell you a story about an incoherent brief or nonsensical argument made by a represented party. But despite the shoddy work federal judges often see, you don’t often hear of this kind of discipline being considered for bad lawyers, save perhaps in the Seventh Circuit (which seems to take a more aggressive approach to policing attorney misconduct). So should there be more of these kinds of opinions? More sanctions? More disbarments?
In my opinion, the answer is a resounding yes. Notions of professional courtesy seem to lead judges away from imposing sanctions. And when judges do snap, they sometimes use colorful rhetoric and childish punishments to make their point. Maybe it’s reasonable for judges to resist imposing discipline too often, as clients are free to sue for malpractice and impose a little discipline themselves. But clients are in a weaker position and lack the money or the time to pursue such a suit (and they’re probably skittish about hiring even more lawyers). Sometimes, they don’t even realize they have grounds to sue. Judges, on the other hand, have the means to punish readily available and should have a special ability to spot incompetence. Why not let them bring the smackdown?
Lawyers, of course, would complain that judges sit in a privileged position far from the daily realities of busy litigation practice. Things fall through the cracks, mistakes get made, and cases that should be winners sometimes lose. But I’m not calling for punishment each time an attorney turns in a sub-par performance. All I’m asking is that lawyers who provide consistently inadequate legal representation be prevented from doing further harm. As servants of the public, judges should step in (as Judge Easterbrook did here) and stop amateur-hour attorneys before they have a chance to massacre another case.