Hello everyone and welcome to this Ethics Alert, which discusses the recent sanctions imposed by the U.S. Seventh Circuit Court of Appeals on an Illinois lawyer who electronically signed an appellate brief which was “incoherent and filled with utterly baseless factual assertions.” apparently drafted by his client. The case is Edith McCurry v. Kenco Logistics Services, No. No. 18-3206. The November 7, 2019 opinion with an Order to Show Cause what sanctions should be imposed is here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D11-07/C:18-3206:J:Sykes:aut:T:fnOp:N:2426737:S:0 and the December 16, 2019 Order imposing sanctions on the lawyer is here: https://drive.google.com/file/d/1bB6rl4nyIbhBPMUGAHYjov1t3ez5cpWW/view
The November 7, 2019 opinion upheld the dismissal of a discrimination lawsuit filed by the client stating “(t)his appeal represents a shameful waste of judicial resources. The opinion also ordered the lawyer to show cause as to why he should not be sanctioned. According to the opinion, “(t)he hopelessness of (the plaintiff’s) cause didn’t deter her lawyer, Jordan Hoffman, from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in the law. In so doing, Hoffman violated Rule 28 of the Federal Rules of Appellate Procedure.”
The opinion also stated that the “monstrosity of an appellate brief” was “incoherent,” and the appeal was “utterly frivolous.” The brief “spans 86 interminable pages”, is “neither concise nor clear,” and “is chock-full of impenetrable arguments and unsupported assertions, and it is organized in ways that escape our understanding.” In a footnote, the opinion also stated that the brief was “a typographical nightmare” that “uses five different fonts and various font sizes, including three different fonts in one sentence, and capitalizes words seemingly at random.”
The lawyer, who had been practicing for over 30 years, responded to the Order to Show Cause stating that he did not have time to write an appellate brief or review the lower court record and did not recognize that it was “a hopeless case.” He also said that the client was a friend who had filed the discrimination lawsuit without a lawyer and that he agreed to appear on her behalf at oral argument. He also admitted that he had permitted her to submit the brief under his name using his electronic filing credentials.
The lawyer stated that “these were all grave errors of judgment, and I can only apologize to the court and promise that I will never allow this occur again.” “I have suffered through the most embarrassing and stressful moments of my legal career and perhaps my life during the oral argument and after the publication of the court’s opinion, and my reputation has been tarnished at the highest level as a result of my actions that caused such a scathing opinion in this matter.” He further stated that he “embarrassed the venerable profession of law and the bar to which I have enjoyed the privilege of being a member for over 32 years during which time my competence has not been called into question.”
In the December 16, 2019 Order, the court stated that “Hoffman’s acceptance of responsibility is appropriate. Still, judicial resources were needlessly consumed, and the defendants were put to the burden and expense of sorting through and defending against a patently frivolous appeal. Sanctions are therefore warranted. Accordingly, pursuant to Rule 38, we order Hoffmann to pay the defendants a reasonable attorney’s fee incurred in the defense of this appeal, plus double costs. The defendants shall submit a statement of their fees and costs by January 3, 2020.”
Bottom line: This is an example of what can go horribly wrong if a lawyer agrees to represent a “friend” as a client, fails to competently represent that client, and allows the client to draft and use his credentials to electronically file a “monstrosity” of a brief. This lawyer was embarrassed professionally and was required to pay the opposing party’s attorney’s fees and double costs under the federal rules. Don’t do it…
…and be careful out there.
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
Please note: My office has moved and the new office address is 2999 Alt. 19, Palm Harbor, FL 34683. All other contact information remains the same.