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Tuesday, May 24, 2016

Ind. Courts - 7th Circuit yesterday on whether an attorney misconduct sanction lacking a monetary component is appealable

In Mary E. McClellan v. Elaine E. Bucklo (ND Ill.), a 13-page opinion, Judge Posner writes:

The principal question presented by this appeal is whether an order by a district court imposing a sanction on a lawyer for misconduct in a case before the court can ever be appealed if the sanction lacks a monetary component.

As part of a lawsuit charging the City of Chicago and others with malicious prosecution and other torts, the plaintiffs sought by subpoena to discover documents lodged in the Cook County State’s Attorney’s Office. The lawyers rep-resenting the Office, who included Mary McClellan, the appellant, told the plaintiffs’ lawyers that the files they were looking for no longer existed. A year later, however, when Judge Grady, the presiding judge, ordered the Office to al-low the plaintiffs’ lawyers to inspect 181 boxes of documents stored in a warehouse, the lawyers quickly found the documents they’d asked for—and moved the district court to sanction McClellan and her colleagues for obstructing the plaintiffs’ discovery by insisting that the documents the plaintiffs needed no longer existed. * * *

McClellan appealed to us, but before the appeal was heard the entire $35,522.94 in money sanctions was paid by the Cook County State’s Attorney’s Office, leaving McClel-lan owing nothing. She didn’t drop her appeal, however, doubtless because if Judge Grady’s sanctions order stands it will have a number of adverse consequences for her professionally, such as requiring her—should she ever move for admission to the bar of another court—to acknowledge having been censured in a judicial order and ordered to contribute to the monetary sanctions that the judge imposed. See, e.g., U.S. District Court for the Northern District of Illinois, Petition for Admission to the General Bar (Jan. 2016). Or, should she be asked by judges, potential clients, or potential employers whether her professional conduct had ever been the subject of an investigation, she would have to answer (unless she lied, which could get her into worse trouble) that she had indeed been investigated for professional misconduct—for Judge Grady’s order triggered an investigation of her by the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court, though as far as we know no disciplinary action has been taken against her by the ARDC. * * *

As a result of the Cook County State’s Attorney’s Office having paid the entire sanctions judgment, McClellan has no standing to challenge the monetary sanction. But the sanctions order contains detailed findings of professional misconduct by her, findings likely to inflict a significant reputational injury having adverse financial consequences for her. Such an injury, inflicted in a formal judicial order, can be serious enough to make the order appealable. Were the order false, it would be akin to a defamatory accusation. * * *

In sum, we deny the plaintiffs’ motion to dismiss the appeal for lack of jurisdiction, and likewise McClellan’s petition for a writ of mandamus, which seeks the same relief as her appeal, just under a different rubric; and we affirm the orders issued by the two judges. But because of the tension between, on the one hand, our analysis and the decisions on which it rests (decisions from eight circuits, as noted in the Second Circuit’s decision in Keach, cited earlier), and on the other hand our decision in the Clark case—which we hereby overrule to the extent that it deems a formal, but non-monetary, sanction not appealable—we have circulated our opinion in advance of publication to all the judges of the court in regular active service, pursuant to Seventh Circuit Rule 40(e), for a determination of whether a majority of the judges want to rehear the case en banc. None of the judges voted to hear it en banc. The judgment is AFFIRMED.

Posted by Marcia Oddi on May 24, 2016 08:28 AM
Posted to Ind. (7th Cir.) Decisions