Commercial Litigation and Arbitration

Authority of Appeals’ Court’s Grievance (Disciplinary) Panel Does Not Require That Merits Panels Refer All Sanctions Matters to Grievance Panel — Discipline and Sanctions Are Distinct Concepts

In re Atty. Griev. Complaint Filed by David Harris, 2023 U.S. App. LEXIS 16307, *1, 2023 WL 4243254 (2d Cir. June 28, 2023):


*1 David Harris has submitted an attorney grievance complaint to this Court, alleging that an attorney involved in Harris’s recent appeal, Harris v. American Accounting Association, 2d Cir. 22-811, engaged in misconduct in the course of that appeal. The appeal concluded in April 2023, when this Court affirmed the district court’s dismissal of Harris’s action but reversed the district court’s award of attorney’s fees and costs against Harris. See Harris, 2d Cir. 22-811, doc. 141 (summary order).


Harris already moved in his appeal for sanctions to be imposed against the attorney now at issue, which the merits panel denied. See id., doc. 137 (motion for sanctions), doc. 159 (order denying sanctions). However, Harris now argues that this Court’s local rules require such sanctions motions to be decided by this panel—the Court’s “Grievance Panel”—and not the merits panel. That argument is based on this Court’s Local Rule 46.2(a), which states that “[a]ll attorney grievance and disciplinary matters are initially handled by” the Grievance Panel.


Upon due consideration, it is hereby ORDERED that Harris’s request for an investigation by this panel is DENIED and this disciplinary matter is terminated. First, the authority granted to the Grievance Panel under Local Rule 46.2(a) has never been viewed as requiring that all sanctions matters be sent to this panel. To the contrary, other panels of the Court (often referred to as “motions panels” and “merits panels”) retain the authority to decide sanctions issues under, for example, 28 U.S.C. § 1927, Federal Rule of Appellate Procedure 38, and the Court’s inherent authority. See, e.g., Watkins v. Smith, 561 F. App’x 46, 48 (2d Cir. 2014) (granting Rule 38 sanctions). Additionally, although the terms “discipline” and “sanctions” are not defined in the relevant rules, and are on some occasions used interchangeably, this Court has generally treated a disciplinary proceeding as distinct from a request for (or sua sponte consideration of) sanctions in a pending appeal.1 See, e.g., Jin Qiu Zheng v. Gonzales, 163 F. App’x 10, 12 (2d Cir. 2005) (“Counsel is warned that her continued failure to comply with the Rules of Appellate Procedure could result in discipline or sanctions. See Fed. R. App. P. 38, 46(b), (c).”).


Second, once a motions or merits panel has decided a misconduct issue, the Grievance Panel lacks authority to revisit that decision (except under unusual circumstances not present here). In re Payne, 707 F.3d 195, 205 (2d Cir. 2013). Third, even if any of Harris’s misconduct allegations are not specifically covered by the merits panel’s decisions—i.e., the summary order disposing of the merits of the appeal and the order denying Harris’s sanctions motion—the misconduct allegations are sufficiently intertwined with the matters decided by the merits panel that it would be inappropriate for this panel to separately address them. In re Attorney Grievance Complaint Filed by Peeples, 842 F. App’x 690, 693 (2d Cir. 2021). Harris’s present misconduct allegations are closely related to both the merits of his appeal and the manner in which the parties’ appellate arguments were presented in their briefs and oral argument. Similar to the situation in Peeples, a new disciplinary proceeding before this panel “might conflict with, or unnecessarily duplicate, the factfinding and legal conclusions of the judges who are most familiar with the relevant events”—in this case, the judges who ruled on Harris’s appeal. Id.


*2 Finally, we note that the above discussion only concerns this panel’s authority to revisit the misconduct issues that were presented to the merits panel or are intertwined with issues presented to that panel. We reach no conclusions as to whether any other disciplinary authority can review the matters raised in Harris’s attorney grievance complaint.







However, the distinction between “discipline” and “sanctions” does not mean that a motions or merits panel cannot refer a sanctions issue to this panel if it so chooses.


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