Appellants’ Attorneys Are Reprimanded or Face 6-Month Suspensions from Ninth Circuit Practice.
Quite a lot of news was generated about a dismissed case brought by some Nicaraguan plaintiffs about Dow Chemical relating to use of DBCP on banana plantations in Nicaragua. Nicaraguan plaintiffs appealed, with an appointed special master finding that monetary sanctions and attorney discipline was justified for the filing of a frivolous appeal based on a spurious Nicaraguan judgment. Plaintiff’s law firm agreed to monetary sanctions of $390,000 under Federal Rules of Appellate Procedure 38 and 46 as well as 28 U.S.C. §§ 1912 and 1927.
That brought the Ninth Circuit, in In re Girardi, Case Nos. 08-80090/03-57038 (9th Cir. July 13, 2010) (for publication), to consider the appropriate discipline for four attorneys representing plaintiffs/appellants. The federal appellate panel decided that a formal reprimand was in order for one attorney, a 6 month suspension from practicing before the Ninth Circuit was appropriate for two attorneys, and a private reprimand for a junior associate who did write an internal memorandum questioning the appeal.
Attached to the opinion is a scholarly report by Justice Tashima, who analyzed the different standard for and elements of appellate sanctions. So, be careful what representations you make before appellate courts and what appeals you prosecute when the facts are against you.