APPELLATE LAWYERS IN HOT WATER IN THE NINTH CIRCUIT

The Ninth Circuit recently issued orders in two cases for appellate counsel to show cause why they should not be sanctioned for misconduct in briefing or oral argument. Some counsel escaped monetary sanctions; one did not. Saying "I'm sorry" seems to matter.

Frivolous appeal.In affirming the denial of a motion to recuse a bankruptcy judge for bias, the Ninth Circuit found the recusal motion was “a transparent attempt to wriggle out of an unfavorable decision by smearing the reputation of the judge who made it.” Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215, 1222 (2014).

The Court also issued an order to show cause why the appellant and his various appellate counsel should not be sanctioned for pursuing a frivolous appeal. After considering counsels' responses, the Court invoked Fed. R. App. 38 and 28 U.S.C. § 1927 to impose monetary sanctions against the appellant and one of his counsel for pursuing an appeal that was frivolous and in bad faith, for making accusations without a shred of evidence to support them, for ignoring evidence against them and for relying on facts outside the record. They were ordered to pay the appellees’ attorneys’ fees and costs for defending the appeal and $500 to reimburse the court for its costs. Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004 (9th Cir. 2015).

But not all counsel suffered monetary sanctions. The counsel who was sanctioned had remained unrepentant to the end. Other counsel conceded that their arguments may have gone to far. Although the Court chastised the others for allowing their names to be placed on briefs that presented frivolous and inflammatory arguments, the Court found that the absence of bad faith militated against an award of monetary sanctions: “We believe that their response to the order to show cause and our comments today will serve as a sufficient warning to them to act more responsibly in the future.” Id. at 1008.

Improper oral argument.At oral argument on an appeal in a class action against government officials arising from the detention of non-citizens without bond hearings, government counsel referred to facts stated in a newspaper article that appeared just three days before the argument, contained inaccurate facts about one of the plaintiffs, and identified its source as “federal authorities.” The Ninth Circuit issued an order to show cause why sanctions should not be imposed against government counsel for this argument. Rodriguez v. Robbins, 797 F.3d 758 (9th Cir. 2015).

After considering the government’s response, the Court discharged its order to show cause. The response satisfied the Court that no government attorney provided information to the newspaper with the object of influencing the appeal and that the timing of the article was just a coincidence. Nevertheless, the Court expressed its displeasure with counsel’s conduct: “Though we appreciate the government’s prompt and respectful submission, we remain concerned that government counsel made an argument based on evidence not properly before this court, which left an impression contrary to the facts . . . .” Rodriguez v. Robbins, No. 13-56706, 2015 WL 5772880, at *1 (9th Cir. Oct. 2, 2015).