The plaintiff’s lawyer in a slip-and-fall case got a pandemic-based pass from the Sixth Circuit Court of Appeals last week, avoiding sanctions that the defendant requested after the lawyer misstated the record. The lawyer had based the plaintiff’s appeal argument on an unsigned interrogatory answer that appeared only in a draft.
But the court in its opinion said that although the conduct was improper, it would exercise its discretion and not impose sanctions. The conduct was “concerning,” said the court, but it would give the lawyer the “benefit of the doubt” absent bad faith, because Michigan’s COVID-19 stay-at-home order was in effect when the lawyer filed the appeal on behalf of the plaintiff, “which may have limited her attorney’s access to the record.” (The court did not recommend its opinion for publication.)
Evidence “not part of the record at all”
The district court had granted summary judgment in favor of the defendant department store on the plaintiff’s injury claim. On appeal, her lawyer’s central argument was that the court below ignored evidence that the store had posted “Wet Floor” warning signs near where the plaintiff had fallen.
However, the argument was based solely on an unsigned draft interrogatory answer that mentioned the signs — but that never became part of the record below. The only evidence of record was the signed final version of the interrogatory answers, which did not mention the warning signs.
The lawyer was aware of the discrepancy because the defendant’s counsel brought it to his attention during a deposition. Nonetheless, the lawyer “quoted the unsigned, draft version” in the plaintiff’s briefing in the district court and “perpetuated that error on appeal,” although the unsigned draft “was nowhere else to be found in the record.”
After the department store brought the mistake to light again on appeal, the lawyer “doubled down,” wrote the court, “insisting that [the court] should now expand the record and reverse based on an unsigned interrogatory that the district court had no authority to consider.”
Exercise of judicial discretion in a pandemic
Despite this conduct, the court declined to sanction the lawyer under Federal Appellate Rule 38 (“Frivolous Appeal”) or 28 U.S.C. § 1912 (“Damages and costs on affirmance”). While sanctions are appropriate under 28 U.S.C. §1927 for lawyer conduct that “falls short” of the obligations owed to the court and causes expense to the opposing party, the court wrote, “We appreciate that these are trying times.”
The imposition of sanctions for frivolous conduct on appeal is discretionary, and although the lawyer’s actions “might have been unprofessional and serous enough to meet the standard for imposing sanctions,” the court chose not to do so, citing the lack of bad faith and the Michigan stay-at-home order that in the court’s view could have limited the lawyer’s access to the record. Under the circumstances, the lawyer did not present the kind of “truly egregious” misconduct that would justify sanctions, the court wrote.
Don’t try this at (stay-at) home
We recently posted about a New York ethics opinion permitting lawyers to withdraw from representation based on their fear of COVID-19 infection. Courts are likewise grappling with lawyer-conduct issues raised or affected by the corona virus, and we are sure to see more such instances. While the lawyer here avoided sanctions, the court noted that the lawyer’s “obstinance makes the case … close.” It goes without saying that the evidence you cite on appeal must actually be in the record. The court here truly extended a COVID-19 lifeline.
Hat tip to Prof. Doron Kalir, of Cleveland-Marshall College of Law, who called this opinion to my attention.