Sanctions — Order Finding Lawyer Violated Ethical Rule Is Appealable Even Though Unaccompanied by Formal Reprimand or Monetary Penalty

From Adams v. Ford Motor Co., 2011 U.S. App. LEXIS 16127 (3d Cir. Aug. 5, 2011):

Vincent A. Colianni appeals from the magistrate judge's order finding that he violated ABA Model Rule of Professional Conduct Rule 3.5 by initiating post-verdict contact with a juror. ***

Appellant Yolanda Adams filed suit in the District Court of the Virgin Islands after she suffered a serious brain injury while driving a vehicle manufactured by Ford Motor Company. By consent of the parties, Magistrate Judge George W. Cannon presided over the trial in the district court. The jury awarded Adams $2.3 million in damages, and determined that she was 77.5% at fault and that Ford was 22.5% at fault.

Vincent Colianni, Adam's counsel of record, called one of the jurors shortly after the trial ended to ask about the jury's award of damages and the assignment of fault between the parties. *** The conversation was very brief, lasting only about one minute. Three of Colianni's colleagues were in his office with him and heard the entire conversation, which Colianni had placed on the speakerphone.

Shortly after the call ended, Barnes [the juror] contacted Magistrate Judge Cannon and informed him that she felt the call was inappropriate. The judge responded by asking Barnes to put her complaint in writing. A few days later, the judge received a letter from Barnes in which she related the circumstances of the call and stated that she found Colianni's conduct "reprehensible," and "bordering on harassment." (App. 60). She also stated that Colianni's call was "the reason many are leery of serving as jurors in our small community." (App. 60).

Thereafter, Magistrate Judge Cannon contacted counsel for both parties and set the matter for an immediate hearing the next day. At the hearing, the judge began by reading the juror's letter and the text of ABA Model Rule 3.5 into the record. ***

On May 27, 2008, the magistrate judge issued an order in which he found that Colianni had "engaged in misconduct by his post-verdict communication with a juror in contravention of American Bar Association Model Rule of Professional Conduct 3.5(c)." (App. 3). The court stated that it would not disbar, suspend, or reprimand counsel pursuant to Local Rule 83.2(b)(3) or initiate disciplinary proceedings pursuant to Local Rule 83.2(b)(5). Instead, the magistrate judge referred the matter to the Virgin Islands Bar Association for a "formal investigation and disciplinary proceedings." (App. 4). At a subsequent hearing, the judge denied Colianni's request to seal the order.***

A. Standing

The government first contends that Colianni has no standing to appeal because he did not suffer an imminent injury that can be redressed by a favorable appellate decision. Specifically, the government argues that Colianni does not have a cognizable injury because the challenged order did not formally "sanction" or reprimand him. As in all cases, we must first address the issue of standing because "[i]f plaintiffs do not possess Article III standing, both the District Court and this Court lack subject matter jurisdiction to address the merits of plaintiff's case." *** A plaintiff's "interests" satisfy Article III when the following three elements are present:

[First], the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. [Second], there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. [Third], it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

*** We have previously highlighted the disagreement among the courts of appeals about whether a court's statement in a judicial opinion constitutes "a legally sufficient injury to support appellate jurisdiction." See Bowers [v. The Nat'l Collegiate Athletic Assoc., 475 F.3d 524, 543 (3d Cir. 2007)] (internal citations omitted). Most courts agree that mere judicial criticism of an attorney's conduct is insufficient to constitute a sanction which would support standing. See, e.g., United States v. Talao, 222 F.3d 1133, 1138 (9th Cir. 2000); Williams v. United States, 156 F.3d 86, 90 (1st Cir. 1998); Bolte v. Home Ins. Co., 744 F.2d 572, 573 (7th Cir. 1984). On the other hand, courts nearly uniformly have held that an order rising to the level of a public reprimand qualifies as a sufficient sanction. See Bank of Nova Scotia v. United States, 487 U.S. 250, 263, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988); Talao, 222 F.3d at 1138 (equating formal finding with public reprimand and sanction); Williams, 156 F.3d at 92 ("Words alone may suffice [as sanctions] if they are expressly identified as a reprimand."); see also FED. R. CIV. P. 11(c)(4) (providing that sanctions may consist of "nonmonetary directives"). Indeed, only the Court of Appeals for the Seventh Circuit has held that a public reprimand is not appealable unless it is accompanied by a monetary sanction. Clark Equip. Co. v. Lift Parts Mg.. Col, Inc., 972 F.2d 817, 820 (7th Cir. 1992) ("[W]e have already decided that an attorney may not appeal from an order that finds misconduct but does not result in monetary liability, despite the potential reputational effects.").

There is far more disagreement among the courts about "whether a factual finding in an opinion that an attorney has engaged in improper conduct is itself a sanction, or whether the court must enter an explicit order that the conduct is sanctionable." Bowers, 475 F.3d at 543; compare Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1353 (Fed. Cir. 2003) (fact that reprimand was not explicitly contained in separate order was not determinative of whether the court had entered a formal reprimand) and Walker v. City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997) (factual finding of misconduct alone is sufficient to constitute a sanction) with Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1199 (9th Cir. 1999) (stating that a factual finding in an opinion that "merely serves to justify the imposition of a sanction is not an independent sanction").

This case is unlike any that we have previously addressed. Magistrate Judge Cannon's order is more than mere judicial criticism because the judge made a factual finding that Colianni had violated ABA Model Rule 3.5(c) and the judge then referred the matter to the Virgin Islands Bar Association for a formal investigation and disciplinary proceedings. Moreover, the factual finding of misconduct was not in an opinion, but in the actual text of the order. On the other hand, the order does not constitute a formal reprimand, because the judge explicitly stated that he did not seek to "disbar, suspend, or reprimand counsel." (App. 3).

We have never before determined whether a finding of attorney misconduct in an order that is unaccompanied by a formal reprimand or the imposition of monetary penalties constitutes a "sanction." Today, we hold that, under the circumstances here, it does. It is clear that the order directly undermines Colianni's professional reputation and standing in the community. Bowers, 475 F.3d at 543. That is far from an insignificant affront. "A lawyer's reputation is one of his[/her] most important professional assets." Precision Specialty Metals, 315 F.3d at 1354.

Footnote 2 Indeed, there is more than a kernel of truth in Iago's pronouncement in Othello:

"Good name in man and woman ...,

Is the immediate jewel of their souls:

Who steals my purse steals ... nothing;

...

But he that filches from me my good name

Robs me of that which enriches him not

And makes me poor indeed."

William Shakespeare, Othello, Act III, Scene II

Accordingly, "[t]he importance of an attorney's professional reputation, and the imperative to defend it when necessary, obviates the need for a finding of monetary liability or other punishment as a requisite for the appeal of a court order finding professional misconduct." Walker, 129 F.3d 831; see also Talao, 222 F.3d at 1138 (noting that a formal finding of misconduct carries the same consequences as a reprimand, as it "is likely to stigmatize [the attorney] among her colleagues and potentially could have a serious detrimental effect on her career"). It is all but inevitable that the magistrate judge's order has adversely impacted Coliani's reputation, particularly in a small legal community such as the Virgin Islands. Moreover, the reputational harm that Colianni has suffered is magnified by the judge's refusal to place the order under seal, thus making the order accessible to anyone with access to an omnipresent internet connection and even minimal familiarity with using an internet search engine.

Furthermore, even if we assume that the order is not a reprimand, it certainly bears a greater resemblance to a reprimand than a comment that is merely critical of Colianni's behavior. "A reprimand generally carries with it a degree of formality." Talao, 222 F.3d at 1138. That prerequisite is clearly satisfied here because the assessment of Colianni's conduct appears in an unsealed court order.3 In addition, the magistrate judge's conclusion that Colianni violated ABA Model Rule 3.5 carries consequences that are similar to those that flow from a reprimand. This is particularly true since Colianni could face disciplinary action from the Virgin Islands Bar Association if the order is affirmed and formal sanctions could be imposed. Therefore, we conclude that Colianni suffered an injury in fact, and thus has standing to file this appeal.

Footnote 3. We take no position on whether our conclusion would have been different had the order been filed under seal. We merely note that the fact that it was not sealed makes its harmful impact all the more obvious.

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