Sanctions: a word to the wise.

• Author: Crim, Michael D.

As a practicing attorney for the past thirteen years in both North Carolina and West Virginia, I have had the honor of trying cases and making legal arguments in a number of state and federal courts. Since becoming an attorney, I have practiced law with a number of attorneys whom I hold in very high regard and from whom I have received solid legal instruction, both in the law, as well as the ethical obligations attendant on taking the oath of a lawyer. Based on this instruction, it has been my practice to not just follow a strict interpretation of the ethical rules that all attorneys are charged with following, but to abide by the spirit and intent of those rules. I firmly believe that the vast majority of practicing attorneys have a respect for their ethical obligations similar to mine.

Over the past few years, however, I have also witnessed erosion in the professionalism that once existed between attorneys representing adverse clients. Among the most prominent shortcomings is the lack of candor to opposing counsel and their respective clients and, more importantly, lack of candor to the court. While an attorney has an ethical obligation to zealously represent his or her client, such obligation does not allow an attorney to misrepresent facts, make knowingly false statements, or withhold discoverable information and evidence. However, these are a few of the tactics that I have witnessed in the recent past as an adversary has attempted to gain an advantage in litigation. As a result of this ethical erosion, courts across the country have become much more active in addressing unprofessional and/or unethical behavior by punishing attorneys, or their clients, who choose not to follow the rules.

As an attorney practicing in West Virginia, my interest in the imposition of court ordered sanctions, particularly for lack of candor, was sparked by a recent Order entered on May 24, 2007 in the Circuit Court of Wood County, West Virginia, in the case of Boggs v. Camden-Clark Memorial Hospital. In Boggs, the Court awarded the plaintiff attorney fees and expenses, plus interest, in the amount of one million three hundred fifty-nine thousand two hundred forty-one dollars and two cents ($1,359,241.02), as a sanction for litigation misconduct committed by the defendant. While Boggs is a case of local, not national, significance, its subject matter is relevant to all practicing attorneys and should serve as a not-so-gentle reminder that our actions and conduct, as well as the actions and conduct of our clients can have significant and expensive consequences.

As is typically the case when a significant decision is issued, the Boggs opinion got the immediate attention of most, if not all, West Virginia attorneys. While the issue of sanctions has always been in play in West Virginia, the magnitude of the sanction in Boggs was unusually punitive. Needless to say, attorneys throughout the State began assessing the appropriateness of their own litigation strategies and conduct in light of the potential ramifications that could result if a court were to determine that their litigation conduct fell short of the appropriate standard. While the sanctions awarded in Boggs were against the client, Camden-Clark Hospital, one can imagine the impact on the attorney and/or his or her law firm, if a Boggs- type sanction was imposed on counsel.

Factually, Boggs was described by the West Virginia Supreme Court of Appeals as a case in which a woman being treated for a broken ankle died on the operating table. (1) Filed in June, 2003, the Plaintiff's Complaint alleged negligence, wrongful death, fraud, spoliation of evidence, fraudulent concealment, the tort of outrage, negligent credentialing, and vicarious liability against...