Hello everyone and welcome to this Ethics Alert, which will discuss the recent Oregon U.S. District Court Judge’s Order requiring the law firm of Davis Wright Tremaine and one of its partners to pay over $40,000.00 in sanctions for failing to mention “long-standing, settled caselaw” that prevented the judge from issuing an injunction that was sought by the law firm. The December 16, 2021 Court Order is here: https://s3.documentcloud.org/documents/21164070/mcshanesanctionslawyerfirmliable.pdf
The Davis Wright law firm had represented St. Charles Health System Inc. in an attempt to prevent a strike by 156 medical technicians and therapists. Davis Wright partner Mark Hutcheson sought an injunction to prevent the strike, even though a district court has no jurisdiction to issue an injunction in those circumstances and only the National Labor Relations Board has authority to seek an injunction to prevent an unfair labor practice under the National Labor Relations Act.
Judge Michael McShane of the U.S. District Court for the District of Oregon sanctioned the law firm and firm partner Mark Hutcheson and required the payment of $40,625.00 for the opposing party’s legal fees. The judge found that the failure to disclose was “an attempt to deceive the court via a material omission.”
The judge further found that the motion was filed in bad faith for an improper purpose to gain a negotiating chip in the hospital’s discussions with the union representing the workers. “Had the defense not cobbled together a quick brief, the court was prepared to issue a completely illegal order based on the law as presented by the hospital; law the court later learned to be a fiction.”
The Order states that the lawyer and law firm “essentially argue that although in hindsight they could have done more to alert the court of binding, contrary precedent, their actions are not sanctionable because they were merely arguing for an ‘extension’ of existing caselaw and were unable to identify any case ‘on all fours’ with the underlying facts here.” “This explanation is meritless.”
Bottom line: This is an example of a court’s application of the Bar Rule which requires lawyers to identify and disclose legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. The lawyer’s failure to disclose the legal authority in this matter resulted in civil sanctions and could also result in an investigation and potential disciplinary sanctions.
Florida Bar Rule 4-3.3(a)(3) sets forth this requirement and is below:
RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL
(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
Be careful out there.
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2999 Alt. 19, Suite A
Palm Harbor, Florida
Office (727) 799-1688
Fax (727) 799-1670
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