Commercial Litigation and Arbitration

Notice of Appeal from Sanctions Order Does Not Permit Review of Sanctions Imposed on Counsel Not Named as Appellant

The notice of appeal is jurisdictional. Absent a notice, the Court of Appeals lacks jurisdiction over the appeal. 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 under the 1993 amendment to Federal Rule of Appellate Procedure 3(c). As a result, if counsel files a notice of appeal in the name of the client but specifies an order which imposes sanctions on counsel alone, the notice has been held sufficient to confer jurisdiction on the Court of Appeals to review the sanctions imposed on counsel. see, e.g., Laurino v. Tate, 220 F.3d 1213, 1218 (10th Cir. 2000) (counsel's failure to appeal in his own name excused where notice of appeal specified, inter alia, an order that sanctioned counsel alone); Joseph, Sanctions: The Federal Law of Litigation Abuse § 17(F)(2)(b) (4th ed. 2008).

What if the order sanctions both client and counsel but only the client appeals? In Halim v Great Gatsby’s Auction Gallery, Inc., 2008 U.S. App. LEXIS 3165 (7th Cir. Feb. 14, 2008), the client filed a pro se appeal from an order that imposed sanctions on both client and counsel. Only the client, however, noticed the appeal. Held, appellate review of the sanctions imposed on his former counsel, who did not file a notice of appeal, was precluded:

While [pro se appellant] Halim's notice of appeal mentions Halim's intent to appeal the district court's March 12, 2007 order granting sanctions, Halim lacks standing to appeal sanctions imposed on [his former lawyer,] Didesch. See FED. R. APP. P. 3(c)(2) ("A pro se notice of appeal is considered filed on behalf of the signer and the signer's spouse and minor children (if they are parties), unless the notice clearly indicates otherwise."); see also Reed v. Great Lakes Companies, Inc., 330 F.3d 931, 933 (7th Cir. 2003) (where a notice of appeal did not list counsel in caption of appeal nor did it mention sanctions in body of notice of appeal, this court lacked jurisdiction); compare Retail Flooring Dealers of Am., Inc. v. Beaulieu of Am., 339 F.3d 1146, 1149 (9th Cir. 2003) (notice of appeal was adequate because attorney signed the notice of appeal which mentioned intent to appeal applicable sanctions and sanctioned attorney argued for reversal of sanctions); Laurino v. Tate, 220 F.3d 1213, 1218 (10th Cir. 2000) (same). Because Didesch took no part in filing the notice of appeal or the appeal thereafter, we cannot find any plausible indication of his intention to challenge the sanctions imposed on him. We therefore lack jurisdiction over any challenge to the Rule 11 sanctions imposed.

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