Commercial Litigation and Arbitration

Failure to Disclose a Judgment as Required by Statute Is Sanctionable under Inherent Power without Bad Faith— Amount of Sanction Is Unaffected by Median Income or Criminal Penalties

From In re Plumeri, 2010 U.S. Dist. LEXIS 80256 (S.D.N.Y. Aug. 2, 2010):

Bankruptcy debtor Saundra Plumeri ("Debtor") and her attorney, Richard D. Lamborn ("Lamborn"), appeal from an Order of the Honorable Martin Glenn, United States Bankruptcy Judge, imposing sanctions against Lamborn and awarding attorney's fees to appellee 64th Street-Third Avenue Associates, LLC (the "Landlord"). The reason for the sanctions is that Lamborn failed to disclose, as required by 11 U.S.C. § 362(l)(5), that the Landlord had an outstanding judgment of possession against the Debtor for the apartment in which she resided at the time that she filed for Chapter 13 bankruptcy. For the following reasons, the Order of the Bankruptcy Court is affirmed. ***

Inherent-power sanctions ordinarily require a clear showing of bad faith on the part of the party to be sanctioned. ***

Nevertheless, the Second Circuit has recognized a limited exception to the bad-faith requirement in circumstances where the attorney's misconduct falls within his or her role as an "officer of the court," as opposed to the attorney's role as an advocate for his or her client. United States v. Seltzer, 227 F.3d 36, 41 (2d Cir. 2000). In Seltzer, the Second Circuit stated:

[T]he inherent power of the district court also includes the power to police the conduct of attorneys as officers of the court, and to sanction attorneys for conduct not inherent to client representation, such as, violations of court orders or other conduct which interferes with the court's power to manage its calendar and the courtroom without a finding of bad faith.

Id. at 42. Seltzer recognized that when an attorney engages in "misconduct that is not undertaken for the client's benefit" — in other words, misconduct unrelated to "legitimate efforts at zealous advocacy for the client" — bad faith is not required in order to impose inherent-power sanctions. Id. at 40, 42. Although Seltzer did not specify the subjective standard that should apply to cases falling within this exception, the Court of Appeals suggested the following year in Wilder that the Seltzer exception applies "where the attorney has negligently or recklessly failed to perform his responsibilities as an officer of the court." Wilder, 258 F.3d at 130 (emphasis added). ***

The record contains sufficient evidence to support the Bankruptcy Court's finding that Lamborn's failure to disclose and file the Judgment was reckless conduct in violation of his duties as an officer of the court, and therefore, sanctionable under the Seltzer exception.

***Lamborn asserts that the sanctions award [of $2,500 in attorneys' fees] is "completely disproportional" and that "[he] is being treated as if he were a serious criminal." Lamborn observes that $2,500 is "equal to 85% of the median household income in the Bronx"; exceeds "[t]he highest fine for the most serious misdemeanor under New York State law"; and falls within the "range of the most serious misdemeanors in federal court." This argument is frivolous. Lamborn identifies no authority for the proposition that an attorney's fee award should relate, in any way, to median household income or to criminal penalties under state or federal law. Courts can, and do, routinely impose attorney's fees awards that are orders of magnitude greater than $2,500 when attorneys or parties, by their conduct, cause those expenses to be wrongfully incurred.

Lamborn does not argue that paying the $2,500 attorney's fee award would represent any financial hardship to himself, nor does he identify any other legitimate basis for concluding that the amount of sanctions imposed was anything other than restrained. As such, Lamborn's challenge to the amount of the attorney's fee award imposed as sanctions cannot succeed.

Share this article:


Recent Posts