Avoid Attorney Sanctions: Show Up for Your Hearing
First Circuit Court of Appeals attorneys: You have to show up for your hearings. It seems obvious because it's hard to bill when you're noticeably absent, but there's a bigger issue than just meeting your billable hours.
What, you may wonder, could ever trump billables in an attorney's heart? Try a healthy fear of fines.
Attorney sanctions are no laughing matter. They look bad on your record, they're proof of judicial ire, and they could land you in a post like this.
Jorge L. Armenteros-Chervoni was sanctioned by the district court for $1,500 after he failed to appear at the rescheduled sentencing hearing for his client, a criminal defendant. While the First Circuit Court of Appeals had sympathy, and reduced his fine, the fine stood nonetheless.
Here's what happened.
The client's sentencing hearing was initially scheduled for 4:30 p.m. on Wednesday, May 12, 2010. On the afternoon of Monday, May 10, the district court moved the hearing to 9:30 a.m. (still on Wednesday), and gave electronic notice of the change. (Prior notices and filings in the case used the electronic case filing system.) Armenteros-Chervoni did not appear at the hearing, so the court imposed sanctions.
Armenteros-Chervoni appealed, noting that he and his secretary has been out of the office, and neither had checked email for electronic notifications. His motion criticized the court for its lack of respect for attorneys, and claimed that the change violated Due Process. That wasn't a good strategy.
Armenteros-Chervoni also argued that the fine amounted to a criminal contempt sanction, and that the district court did not follow the proper procedure for imposing a criminal contempt sanction.
The First Circuit Court of Appeals disagreed, and noted that the criminal contempt argument was based on a flawed premise: that because the district court's sanction was not a civil contempt sanction ... it must have been a criminal contempt sanction, imposed "retrospectively for a completed act of disobedience." The First Circuit found his reasoning flawed because there is a third category of "punitive non-contempt sanctions," based on a court's inherent power to regulate itself.
The First Circuit determined that a lesser attorney sanction would suffice to deter future violations, and reduced the fine to $500.
Here are three lessons you can take away from this case:
- Make sure your electronic notifications are sent to an email address that you check on your smartphone. The First Circuit noted that attorneys have an obligation to remain informed about the status of their cases and comply with applicable scheduling orders.
- If you miss a hearing, don't blame the court.
- If you choose to appeal an attorney sanction, thoroughly research the grounds for your appeal. The last thing you want to do when the court is perturbed is give it an excuse to criticize your reasoning.
- U.S. v. Romero-Lopez (FindLaw's CaseLaw)
- Attorney Sanctions for Frivolous Appeal in 9/11 'Truther' Lawsuit (FindLaw's Second Circuit blog)
- Criminal Contempt of T.V. Personality, Plus Consumer Fraud Class Action Certification (FindLaw's Seventh Circuit blog)