Lawyer can appeal sanction order though fine has been paid by her employer, Posner opinion says
A former prosecutor appealing a sanctions order has standing, though the fine has already been paid, but she loses on the merits, a federal appeals court has ruled.
The Chicago-based 7th U.S. Circuit Court of Appeals ruled (PDF) on Monday in an appeal by Mary McClellan, a former assistant state’s attorney in Cook County who represented her office in a civil rights case against the city of Chicago.
McClellan was later elected county clerk in McHenry County, one of Chicago’s collar counties, the Chicago Tribune reported when the $35,000 sanction was imposed in January 2015. She still holds that position.
McClellan has standing to appeal the sanctions order because it contains detailed findings of misconduct during discovery, but not the monetary sanction itself because it has been paid in full by the Cook County State’s Attorney’s office, the appeals court said. Judge Richard Posner wrote the opinion.
“Because a finding of attorney misconduct in a sanctions order can seriously impair an attorney’s professional standing, reputation, and earning possibilities, such an order can’t be brushed off as easily as a gnat,” Posner wrote. “It is not just a slap on the wrist, or an angry remark by a judge in the course of a trial or other hearing. It is a judicial order, in this case issued by a respected and experienced federal judge .”
The sanctions order against McClellan and her office said she had “recklessly adhered to the position” that files sought in the civil rights litigation didn’t exist.
First McClellan’s employer maintained that almost all misdemeanor files are destroyed after trial, said the sanctions order by U.S. District Judge John Grady.. Then, when the office disclosed that 181 misdemeanor boxes of case files were stored in a warehouse, McClellan “recklessly overstated” the amount of time and resources it would take to inspect the files, Grady said. When plaintiff’s lawyers were allowed to inspect the boxes, they found the relevant documents within minutes.
After ruling for McClellan on standing, the appeals court upheld the sanctions order. “The significance of the order, as far as McClellan is concerned, is not the price tag but the sharp criticisms of her in the order, and those criticisms were apt and accurate,” Posner wrote. “It took multiple court orders and more than a year of effort for the plaintiffs to obtain all the documents to which they were entitled. The district court did not abuse its discretion in sanctioning her.”
McClellan has said she was relying on representations by others in her office when she said the files didn’t exist, according to the Tribune story. She also said she looked through hundreds of boxes herself while searching for the files and couldn’t find them. The files, from 2008, were misfiled in a box labeled 2010.
“I pride myself on being an attorney and being honest and being forthright,” McClellan told the Tribune after the initial sanctions order. “As an attorney, you take the position that you advocated for our client, but you always have ethical obligations as an individual, which I take very seriously.”
The State’s Attorney’s office released its own statement to the Tribune. “We believe that Ms. McClellan had a good faith basis to believe that her statements to the court were truthful,” the statement said.
The 7th Circuit opinion partly overruled a prior case. None of the appeals court’s active judges voted to rehear the case en banc when the decision was circulated in advance of publication, the opinion said.
Hat tip to How Appealing.
