Sticks and stones: the ability of attorneys to appeal from judicial criticism.

• Author: Funk, Matthew

INTRODUCTION I. HURDLES TO APPELLATE JURISDICTION A. Nonparties B. Judgments, Not Opinions C. Injury Sufficient To Give Independent Standing II. DIFFERING APPROACHES TO ATTORNEY APPEALS IN THE FEDERAL COURTS OF APPEALS A. Most Restrictive: The Seventh Circuit's Approach B. Formalist Middle Ground C. Findings of Misconduct D. Summary III. ALLOW APPEAL FOR FINDINGS OF MISCONDUCT, BUT NO FURTHER A. Unsuitability of the Fine-Only and Formal-Reprimand Standards 1. The Fine-Only Standard 2. The Formal-Reprimand Standard B. Findings of Misconduct: The New Jurisdictional Line 1. Legal Justification 2. Appellate-Policy Rationale 3. Non- and Prior-Litigation Misconduct C. Further Expansion Is Also Unworkable CONCLUSION INTRODUCTION

Not all attorneys are angels. During litigation, situations arise where a judge will feel the need to criticize an attorney's conduct. It could be through remarks off the record, through a sanction and fine for something like a Rule 11 (1) violation, or any number of methods in between. However, not all federal district court judges are infallible, and criticism, especially on the record or in a published opinion, can have severe repercussions on an attorney's reputation and livelihood. What options for appellate-level review does a chastised attorney currently have? What options should she have?

This Comment explores the circuit split concerning an attorney's ability to appeal on her own behalf from a district court proceeding in which she is not a party. From a strict requirement that the district court actually fine the attorney (2) to a requirement that the court make findings of misconduct, (3) circuits have drawn different lines to limit appellate jurisdiction. The circuits have been split on the issue of when an attorney can bring an appeal on her own behalf for some time, (4) but the Supreme Court has shown no interest in resolving the issue. As recently as October 2007, the Supreme Court denied certiorari on an appeal from the Seventh Circuit's reaffirmation of its position in Seymour v. Hug. (5) This Comment argues that federal courts should have jurisdiction to hear appeals based on specific findings that an attorney engaged in misconduct during litigation before the district court, even when monetary fines or other formal sanctions have not been imposed.

Though this circuit split has existed for well over a decade, scholarship addressing it has been limited until recently. Two student comments reviewing the split have been published within the past year, suggesting different resolutions. (6) One argues for a resolution similar to the resolution endorsed here; (7) this Comment, however, not only discusses and evaluates the rationales and concerns offered by the courts of appeals themselves, but also brings in larger systemic themes from the areas of appellate jurisdiction and review. Allowing appeals from findings of misconduct, from findings that an attorney has violated a specific legal or ethical duty, fits within the general exception for nonparty appeals and has the additional benefits of providing greater appellate control of judges and clarifying proper attorney conduct through increased oversight and opportunity for appellate review. Allowing appeals from findings of misconduct both addresses the concerns raised by the courts of appeals and best serves the larger goals and constraints of the appellate system.

Part I starts with a brief look at the law of appellate jurisdiction and the hurdles that attorneys face in the form of general jurisdictional rules. As this Comment explains, these rules are already subject to many exceptions. Part I also provides important context with which to evaluate the various approaches by the courts of appeals. Part II details the current state of the circuit split, highlighting the rationales and fears that each circuit has raised in deciding the issue. Part III considers what the law should be in light of legal precedent and policy; it extends the discussion beyond the explicit concerns of the circuits by placing the debate in the larger context of appellate jurisdiction and appellate review, including the usefulness of promoting uniform attorney conduct in the federal courts and checking abuses by the district courts. Ultimately, it is the rule allowing appeals from explicit findings of attorney misconduct that best serves these larger goals.

1. HURDLES TO APPELLATE JURISDICTION

   The appellate courts have framed the issue of attorney appeals as a dispute over the boundaries of federal appellate jurisdiction, with a focus on the statutory requirement of a "final order" (8) and the limits on standing based on judicial interpretations of the Article III "case or controversy" requirement. (9) Both of these jurisdictional grants are filled with intricacy, nuance, and pitfalls. (10) While a comprehensive review of appellate jurisdiction in federal courts is beyond the scope of this Comment, certain general rules are necessary to frame the issues analyzed and discussed in Parts II and III.

   1. Nonparties

      A fundamental general rule of appellate litigation is that only named parties can appeal a final judgment, even if a nonparty's interests are harmed by it. (11) There are, of course, various exceptions to this general rule. (12) Among those nonparties who can appeal orders are those found in contempt, (13) witnesses disputing the amount of a fee paid to them, (14) and attorneys who have been sanctioned and fined. (15) As explained by the Federal Circuit in Nisus Corp. v. PermaChink Systems, Inc., the theory behind exceptions such as these is that they form a side action to the main case, and by rendering judgment against a nonparty, the court has in effect made it a party to that judgment only. (16) Thus, a necessary step for a chastised attorney will be to show that there was a judicial decision directed by the court specifically against her. A related inquiry, and one that has split the circuits on the issue of attorney appeals, is what exactly counts as a sufficient judicial decision.

   2. Judgments, Not Opinions

      Another time-honored axiom of appellate review is that courts review judgments, not opinions. (17) Put another way, appellate courts will not look at the findings of an opinion except as they relate to the ultimate judgment. This prohibition becomes important when attorneys attempt to appeal from findings of misconduct rather than from formal sanction orders.

      This also becomes important when a winning party seeks review of otherwise negative findings in a judgment. Generally, a party that is successful in the judgment is not allowed to appeal. (18) The Supreme Court explored the underpinnings of this policy in Deposit Guaranty National Bank v. Roper. (19) The Court based the rule on the interpretation of the jurisdictional statutes and of historical practice rather than on Article III. (20) Because the rule is not constitutionally compelled, the Court acknowledged that in certain cases a successful party may appeal "an adverse ruling collateral to the judgment" if the party still meets other Article III standing requirements. (21) The important inquiry is whether, despite the successful judgment, the prevailing party retains a sufficient "stake in the appeal." (22) Findings that might have preclusive effect, for example, could give standing for appellate review, notwithstanding the fact that the judgment was in the party's favor. (23) These appeals are from findings, and not the judgment itself, and therefore provide an exception to the rule that might be instructive to attorneys appealing findings of misconduct.

   3. Injury Sufficient To Give Independent Standing

      In addition to the judgment requirement discussed above, courts have interpreted Article III as requiring an appellant to show injury resulting from a court's decision in order to have appellate standing. (24) When monetary sanctions are involved, the attorney's personal stake in the appeal is clear. Where no fines have been imposed, however, the issue turns on whether potential injury to a lawyer's reputation is sufficient to grant appellate standing. The Supreme Court has not directly addressed this point with respect to lawyers, but it has in the past found that a showing of damage to reputation is sufficient to give standing. (25) As Part II will show, most circuits that have explored the issue have found that damage to reputation and the resulting monetary damage through loss of business is likewise sufficient.

2. DIFFERING APPROACHES TO ATTORNEY APPEALS IN THE FEDERAL COURTS OF APPEALS

   Before surveying the circuits' various approaches, it is worth discussing a point on which they all agree: the availability of appeal from monetary fines. It seems settled that an attorney can appeal a monetary sanction resulting from Rule 11 or Rule 37 violations and the like. In Cunningham v. Hamilton County, for example, the Court was asked to decide whether a Rule 37(a) sanction for misconduct during discovery could be immediately appealed. (26) The discussion centered on whether such a sanction could be considered a "final order" under the collateral order doctrine, which would be sufficient to give the appellate courts jurisdiction under 28 U.S.C. [section] 1291. (27) No attention was given to the uncontroversial notion that a nonparty attorney could challenge such a sanction on the appellate level. Like a nonparty held in contempt, (28) a fined attorney can seek a second opinion. (29) Having identified the common ground uniting the circuits, it is time to explore how, and why, they depart.

   1. Most Restrictive: The Seventh Circuit's Approach

      Only the Seventh Circuit has refused to extend the availability of appeal for a reproached attorney beyond cases involving monetary sanctions. (30) Instead of an appeal, this circuit endorses the availability of a writ of mandamus to compel a district court to strike excessive language. (31)

      In Bolte v. Home Insurance Co. a district court...