Commercial Litigation and Arbitration

Inherent Power Sanctions — High Threshold for Bad Faith — Limiting Language

After the plaintiffs prevailed in their civil rights action in Mendez v. County of San Bernardino, 2008 U.S. App. LEXIS 18426 (9th Cir. Aug. 27, 2008), the trial judge sanctioned plaintiffs’ lead counsel for failure to appear personally at a hearing on an Order to Show Cause, although it was not specified in the order that lead counsel personally was required to appear. In reversing the sanction, the Ninth Circuit stressed the high standard that must be met to establish the bad faith prerequisite to inherent power sanctions:

The district court's authority to impose sanctions under its inherent powers is broad, but not limitless. "Before awarding sanctions under its inherent powers . . . the court must make an explicit finding that counsel's conduct 'constituted or was tantamount to bad faith.'" *** A finding of bad faith may be appropriate when, among other things, a party engages in behavior that has the effect of "delaying or disrupting the litigation or hampering enforcement of a court order." *** We have emphasized, however, that "[t]he bad faith requirement sets a high threshold." *** Even in a case where the district court described a litigant's arguments as "totally frivolous," "outrageous" and "inexcusable" and called his behavior "appall[ing]," we nonetheless refused to equate this characterization of conduct as synonymous with a finding of bad faith. *** Here the district court said only that it found it "difficult to understand" that Gonzales would not have known his personal appearance was required. This does not suffice as a finding of bad faith, nor is this a case where "bad faith is so patent that we will infer the necessary finding." ***

We are also troubled by the district court's failure to give Gonzales notice that his personal appearance was required at the first order to show cause hearing. A district court may not sanction an attorney under its inherent powers if there is nothing in the local rules or norms of professional conduct "which would have placed [the attorney] on reasonable notice" that his conduct was not in conformance with the court's requirements. *** Although the district court suggested that the contempt proceeding was an entirely separate action such that Gonzales should have known to enter a formal appearance of counsel on his behalf, courts frequently impose sanctions against clients as well as attorneys for their counsel's misbehavior before the court.*** Earlier in the litigation, the court had in fact issued to both sides an order to show cause for sanctions for a possible violation of a court order regarding a settlement conference. *** That OSC did not purport to run against any of the attorneys personally, although individual attorneys might have been to blame for any error. ***

We recognize that district courts enjoy "broad power" to award sanctions against attorney misconduct and that it is important for courts to have sufficient tools to control the behavior of litigants in their courtrooms. *** Nonetheless, the Supreme Court has cautioned that "[b]ecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion." *** "Sanctions not only may have a severe effect on the individual attorney sanctioned," potentially damaging the attorney's career, reputation and livelihood, but they "also may deter future parties from pursuing colorable claims." *** Because the district court did not make a bad faith finding before imposing sanctions, and the record does not support such a finding, we must reverse and vacate the sanction order.

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