Commercial Litigation and Arbitration

Sanctions: Failure of Notice of Appeal to Identify Sanctioned Counsel as Appellant

Generally, a notice of appeal in the name of the client alone is insufficient to obtain review of sanctions imposed on counsel. Counsel ordinarily must appeal in his or her own name, although this requirement is somewhat leniently applied. Fed. R. App. P. 3(c) was amended in 1993 to provide that (i) the ``notice of appeal must ... specify the party or parties taking the appeal by naming each appellant in either the caption or the body of the notice of appeal'' and (ii) "[a]n appeal must not be dismissed … for failure to name a party whose intent to appeal is otherwise clear from the notice.''

That would seem pretty clearly to require that a sanctioned lawyer’s name appear in the notice of appeal somewhere, and that is one thing the appealing lawyer forgot to do, despite filing at least three amended notices of appeal in Dixon v. Clem, 2007 U.S. App. LEXIS 16247 (6th Cir. July 10, 2007). Nonetheless, the Sixth Circuit accepted the appeal because the notice of appeal explicitly designated ‛the District Court’s orders relating to sanctions under 28 U.S.C. § 1927“ as an ‛additional order being appealed from.“ Given that only counsel is subject to § 1927 sanctions, the Court of Appeals deemed this sufficient to identify (tacitly) sanctioned counsel an appellant.

Demonstrating that intransigently bad lawyering may have unintended, if quite limited, side benefits, the Court observed that ‛prudential considerations further support this conclusion. Declining jurisdiction would inevitably result in [the sanctioned lawyer’s] attempting to refile the appeal under his own name, even though the deadline for doing so has already long since passed. The defendants would then presumably move to dismiss the appeal for untimeliness, and we, in turn, would have to rule on the motion. This likely sequence of events would be a waste of judicial resources. It would also be unnecessary in light of the weakness of [the sanctioned lawyer’s] argument“ on the merits. Appeal accepted; sanctions affirmed.

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