Lawyer 'turned in the poorest performance' he has seen in 12 years on bench, former federal judge says
Updated: A former federal judge in Illinois has referred a Chicago lawyer for potential discipline after declaring that she had “turned in the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.”
Then-U.S. District Judge Gary Feinerman of the Northern District of Illinois referred lawyer Calvita Frederick to the district court’s executive committee for potential discipline. He also tossed the discrimination case that she filed on behalf of Michael Outley against the city of Chicago as a sanction.
Feinerman issued his opinion before he left the bench at the end of the year. Latham & Watkins announced Thursday that he has joined the law firm as a partner, according to Reuters.
Feinerman said in his Dec. 30 opinion that Frederick’s conduct “went beyond clumsy lawyering.”
According to Feinerman, Frederick sought to file 20 evidence motions after the deadline had passed, failed to collaborate on a final pretrial order, made “a series of intemperate remarks” during a pretrial conference, and apparently failed to read a court order—leading her to wrongly think that all her opponents’ motions in limine had been granted.
Among her “intemperate” comments were these statements in which she complained of being “ripped a new butthole”:
• “It amazes me how in this—in this jurisdiction—and I’m just venting here for a minute. In this jurisdiction, a judge can set a court case for a ruling and not be ready and kick it another two months, and that’s just fine; but if a—if a counsel needs a couple of extra weeks, it’s—they get ripped a new butthole, and their case is very close to dismissed.”
• “We didn’t dot every ‘i,’ didn’t cross every ‘t’ on time, but we did—we have not blown off preparing for this case. We just ran late, as you do and every other judge in this jurisdiction and every other major law firm in this jurisdiction does from time to time. But when a solo practitioner does it, they rip me a new butthole. And talk about how—are you kidding? Failure to prosecute this case? Are you kidding?”
“Attorney Frederick repeatedly transgressed the bounds of appropriate zealous advocacy in addressing the court,” Feinerman wrote. “It is not appropriate advocacy to speak of ‘get[ing] ripped a new butthole,’” for example.
Then, just days before trial, Frederick sought to stay the proceedings for a ruling on an upcoming motion that included a request that Feinerman disqualify himself from the case.
“The motion’s object,” Feinerman wrote, “was to circumvent the court’s pretrial rulings without waiting to pursue an appeal.”
In a reply brief supporting her motion, Frederick “included various inappropriate and intemperate remarks toward the court,” Feinerman said. They included: “It would be unwise for the court to try to get along with the defendants and one more time, as it has become the norm in this litigation unfortunately, grant their wishes.”
Feinerman denied the motion. Frederick tried again, filing an “emergency injunction to stay proceedings” the day before the scheduled trial. The motion argued that Feinerman was “personally prejudiced and biased” against Frederick, he has “lost the ability to remain objective and rational,” and he follows an “alternative speculative realty” (apparently meaning “reality”).
“A casual observer might think that attorney Frederick’s time would have been better spent preparing for trial than trying to secure its delay,” Feinerman wrote. “But the casual observer would be wrong because delay was precisely the object of attorney Frederick’s barrage of motions.”
During opening statements, Frederick mentioned evidence that had been excluded and said the case was partly about retaliation, a claim that had been eliminated in a summary judgment decision, Feinerman said. During the trial, she also elicited testimony about topics that had been banned or that required advance approval from the court.
“The court repeatedly admonished attorney Frederick and sought to address her repeated missteps with curative instructions,” Feinerman wrote. “And yet her unacceptable conduct continued.”
When Feinerman told the lawyers outside the presence of the jury that he would consider mistrial motions by Frederick’s opponent, Frederick said she didn’t intend to cause a mistrial. Frederick said she had been dealing with personal health issues and concentration issues, and she didn’t want to get sick because she has two children in college who still need her.
“I fought so hard to get the trial continued because I’m just physically, mentally, emotionally not up to it,” Frederick said.
Feinerman granted a mistrial motion by Frederick’s opponent the next day. He ordered Frederick to show cause why she shouldn’t be sanctioned and referred to the executive committee for potential discipline and to show cause why he shouldn’t dismiss the case without an opportunity to refile.
Feinerman said he was justified in dismissing the case under Rule 41(b) of the Federal Rules of Civil Procedure, which allows dismissal for failing to prosecute a case, or to comply with the civil rules or a court order. In the alternative, dismissal is warranted under the court’s inherent authority, Feinerman said.
Dismissal is necessary to maintain the integrity of the trial process, Feinerman said.
“Attorney Frederick’s repeated violations of the court’s rulings went beyond clumsy lawyering, and she acted in bad faith by ‘recklessly making … frivolous [arguments],’” wrote Feinerman, using a quote from a prior decision.
Feinerman noted that a federal judge had dismissed a case filed by Frederick in 2021 because of “delay and contumacious conduct.” A different federal judge awarded sanctions against Frederick for allegedly filing an amended complaint with baseless, false and misleading allegations, with the purpose of delay.
Feinerman said Rule 11 sanctions were justified because Frederick admitted that the barrage of motions that she filed before trial were intended to secure a delay. She also made false statements about an order by Feinerman and made frivolous arguments, Feinerman said.
“Attorney Frederick offered various explanations for her conduct, including health and family issues and lack of familiarity with the trial process (having never taken a case to trial),” Feinerman said. “Attorney Frederick has cited similar excuses for her conduct in other cases. … Making matters worse, attorney Frederick has demonstrated a penchant of baselessly accusing judges in this district of bias when things do not go her way. … Attorney Frederick argues that if she is removed or suspended from this court’s bar, she will be effectively driven out of business, to the detriment of clients.”
“As a threshold matter, a referral for discipline does not guarantee that discipline will be imposed. More fundamentally, many clients have been harmed by attorney Frederick’s deficient representation in this and other cases and, if past is prologue, other clients will be so harmed in the future if she is allowed to continue practicing in this district,” Feinerman wrote.
Frederick did not immediately respond to an ABA Journal message left on a voicemail at the number for her listed in Illinois bar records. Nor did she immediately respond to an email sent to an address listed in court records.
Hat tip to Law360, which covered Feinerman’s order.
Story updated on Jan. 5 at 2 p.m. to report that Feinerman has left the bench.