It is well-settled that a judicial reprimand of counsel may be entered as a sanction, and that this sanction is appealable. It is equally true that ‛mere criticism“ of counsel is not appealable. (It never seems ‛mere“ at the time.) The question is when judicial criticism that is not explicitly entered as a sanction may be appealed — specifically, what if it is contained in a finding of fact? — and on this the Circuits have differing views. See generally Joseph, Sanctions: The Federal Law of Litigation Abuse § 16(B)(4)(a) (3d ed. Supp. 2007).

The Third Circuit recently weighed in on this in Bowers v. NCAA, 2007 U.S. App. LEXIS 2150 (3d Cir. Feb. 1, 2007). The District Court order before it clearly granted a sanctions motion against the plaintiff but ‛did not impose any additional monetary or disciplinary sanctions on [plaintiff’s] attorneys beyond factual findings and language in the actual order that the conduct of those attorneys merited sanctions.“ While accepting the proposition that mere judicial criticism is generally insufficient to constitute an appealable sanction, the Third Circuit focused on the fact that the appealing attorneys had been the subject of repeated findings of bad faith. Held, ‛the weight of authority supports a finding that the repeated, explicit public reprimand of the attorneys in this case constitutes an appealable sanction.“ Given that the attorneys were not even on notice that the they might be sanctioned (no motion or order to show cause had targeted them before the District Court entered its order), the sanctions were vacated for lack of due process and remanded.