Commercial Litigation and Arbitration

No First Amendment Defense to Sanctions — Here, Inherent Power Sanctions

In re Gleason, 2012 U.S. App. LEXIS 21248 (11th Cir. Oct. 15, 2012):

Gleason contends his sixty-day suspension from practice violates his First Amendment right to free speech. He argues that the bankruptcy court should not have disciplined him based on the "tone" of his submissions, which he describes as "truthful responses to a string of unjustified abuses." He asserts that his First Amendment rights supersede the rules that regulate attorney conduct.

Footnote 1. The tone of Gleason's response to the bankruptcy court's show cause order is illustrated by its opening and closing paragraphs:

In your fourth published example of "Ready-Fire-Aim" against this attorney, it is obvious that you have not reviewed the record in this case which does not support the purported findings of fact. It is further quite obvious that you do not believe that the same respect mandated to be shown to you should also be shown to me. Your conclusion that [my client's] attempt to exempt his commissions as the head of a household is not supported by law is belied by the language of the actual statute. Your conduct in this case [h]as been without citation to any authority for the propositions that: your jurisdiction is never ending and without geographic bounds; your unconditional releases are meaningless; and pronouncements of the United States Supreme Court are mere suggestions.

* * *

It is sad when a man of your intellectual ability cannot get it right when your own record does not support your half-baked findings.

Doc. 592 at 1, 4 (footnote omitted). In a supplemental response, Gleason stated that he "delivered a nice bottle of wine to the Court's chambers, with a hand-written note, which read as follows, 'Dear Judge Olson, a Donnybrook ends when someone buys the first drink. May we resolve our issues privately?'" Doc. 614 at 7.

Gleason has identified no authority supporting his contention that the First Amendment shields from sanctions an attorney who files an inappropriate and unprofessional pleading and then contacts a presiding judge ex parte with an offer to share a bottle of wine and "privately" resolve their dispute. When an attorney files inappropriate and unprofessional documents, a court may impose sanctions based on its "inherent power to oversee attorneys practicing before it." Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1308 (11th Cir. 2002) (upholding a district court's decision to sanction an attorney who submitted documents containing personal attacks on opposing counsel).

In the present case, the bankruptcy court found that Gleason's written submissions to the court and sending a judge a bottle of wine with an offer to resolve their differences privately amounted to "sanctionable professional misconduct." In ordering sanctions, the court exercised its inherent authority to oversee an attorney practicing before it. Proper procedures for challenging rulings that an attorney believes are wrong do not include filing an inappropriate response to a show cause order and then compounding that problem by contacting the judge ex parte. If Gleason believed that the rulings in the underlying bankruptcy case were based on errors of fact or law, his proper procedure was an appeal. Under the circumstances of this case, the bankruptcy court did not violate Gleason's First Amendment rights by sanctioning him.

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