Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4720" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/12/Legal-brief-300x300.jpg" alt="" width="300" height="300">As widely reported in the news, the Seventh Circuit Court of Appeals last month harshly rebuked an Illinois lawyer for submitting a rambling 86-page appellate brief that the court said was &ldquo;incoherent&rdquo; and &ldquo;gibberish.&rdquo;&nbsp; Quotes from the brief indeed made it appear deficient.&nbsp; (One section, said the court, consisted solely of the heading &ldquo;GAMESMANSHIP&rdquo; and&nbsp;the statement that &ldquo;Defendants have been &lsquo;gaming&rsquo; the system.&rdquo;)
But in the court&rsquo;s&nbsp;<a href="http://filehost.thompsonhine.com/uploads/order_c1e9.pdf">sanctions order</a>&nbsp;issued&nbsp;Monday,&nbsp;requiring the lawyer to pay legal fees and double costs, a new detail became widely known&nbsp;&mdash; namely, the lawyer said that his client had written the brief, and with his permission used the lawyer&rsquo;s credentials to file the&nbsp;brief&nbsp;with the court.
&ldquo;Monstrosity&rdquo;
Last month, in upholding summary judgment in favor of the defendant employer in&nbsp;the&nbsp;discrimination suit, the Seventh Circuit said there was no evidence to support the claims of the lawyer&rsquo;s client (the plaintiff) and the appeal was &ldquo;utterly frivolous.&rdquo;&nbsp; The court went on to label the brief a &ldquo;monstrosity.&rdquo;
The sanctioned lawyer&rsquo;s client had&nbsp;launched&nbsp;the case in the district court pro se, with a 386-paragraph complaint.&nbsp; After the employer moved for summary judgment, she filed a response that the appeals court called &ldquo;woefully noncompliant&rdquo; with the local rule governing summary judgment briefs.&nbsp; The court said that the response lacked the required sections, was a &ldquo;disorganized ... hard-to-decipher mess&rdquo; and failed to cite&nbsp;appropriate&nbsp;evidence to oppose summary judgment.
On appeal, the&nbsp;formerly-pro se plaintiff was represented by&nbsp;the lawyer.&nbsp;&nbsp;The Seventh Circuit&rsquo;s&nbsp;November 7 ruling disposed of the client&rsquo;s&nbsp;substantive arguments and quickly turned to sanctions against the lawyer under <a href="https://www.law.cornell.edu/rules/frap/rule_38">Federal Appellate Rule 38</a>, calling the appeal a &ldquo;shameful waste of judicial resources.&rdquo;&nbsp; In an opinion that has been <a href="https://abovethelaw.com/2019/11/bad-writing-does-not-normally-warrant-sanctions-but-we-draw-the-line-at-gibberish/">called a &ldquo;vicious benchslapping</a>,&rdquo; the court called out the brief for its&nbsp;legally and factually baseless assertions, &ldquo;impenetrable arguments,&rdquo; and even being a &ldquo;typographical nightmare.&rdquo;
&ldquo;Most embarrassing&rdquo;&nbsp;moments
At oral argument, the court noted in its November opinion, the lawyer had stated that he is a solo practitioner who &ldquo;tries to get the help of ... clients and whoever can provide help to [him]&rdquo; and then &ldquo;merge[s] that information.&rdquo;
The court found that statement to be cryptic.&nbsp; But in the lawyer&rsquo;s&nbsp;<a href="http://filehost.thompsonhine.com/uploads/response_to_roder_to_show_cause_5286.pdf">response</a> to the court&rsquo;s&nbsp;show cause order on&nbsp;sanctions,&nbsp;it became clear what had happened:&nbsp; the client had written the brief herself.
The court said that&nbsp;the lawyer explained in his response &ldquo;that he did not have time to write an appellate brief, review the district court&rsquo;s order, or examine the record.&rdquo;&nbsp; And he also &ldquo;confessed that he allowed [the client] to submit an appellate brief that she prepared herself,&rdquo; authorizing her to use his name, electronic signature and filing credentials.
In his response, the lawyer further explained that he had been a longtime friend of the client and &ldquo;reluctantly agreed to do her oral argument after she asked me several times.&rdquo;&nbsp; When the briefing deadline came due, he &ldquo;did not have the time ... to attempt to rewrite [the client&rsquo;s] brief and had to rely on the document that [the client] herself provided.&rdquo;
The lawyer said in his response that during the oral argument he had &ldquo;suffered through the most embarrassing and stressful moments of my legal career and perhaps my life,&rdquo; and rued the tarnishing of his reputation after 32 years of practice.&nbsp; He apologized for his &ldquo;grave errors of judgment.&rdquo;
In ordering the lawyer to pay attorney fees and double costs, the court noted his contrition, but said sanctions were merited based on the needless use of judicial resources and the burden and expense to the defendants.&nbsp; Defendants were ordered to submit their fee-and-cost statement in early January.
Reverse-ghostwriting?
If you&rsquo;re a litigator, you&rsquo;ve certainly&nbsp;been up against briefing deadlines.&nbsp; And I&rsquo;m guessing that most of us have been subject to the entreaties of friends or family members who want us to do work for them when we really don&rsquo;t have the time (or inclination, or know-how) to help.
These combined&nbsp;pressures can sometimes lead us to judgment errors.&nbsp;&nbsp;Many federal cases&nbsp;say that a lawyer&nbsp;shouldn&rsquo;t ghostwrite a&nbsp;brief for a client, while <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_2_scope_of_representation_allocation_of_authority_between_client_lawyer/">Model Rule 1.2(c)</a> on limited scope representation and ABA Ethics Opinion 07-446 (May 5, 2007) (as well as some state ethics opinions) suggest that it can sometimes be permitted.&nbsp; (<a href="http://www.abajournal.com/magazine/article/ghostwriting_ethics_attorney_pro_se">Here&nbsp;</a>and <a href="https://judicialstudies.duke.edu/wp-content/uploads/2018/12/JUDICATURE102-3_Ghostwriting.pdf">here</a> are some discussions on the issue.)&nbsp; But the opposite &mdash; letting a client submit her own work as yours, a kind of reverse ghostwriting&nbsp;&mdash;&nbsp;might be problematic.&nbsp; <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/">Model Rule 8.4(c)</a> bars all forms of dishonesty, fraud, deceit and misrepresentation.&nbsp; <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/">Model Rule 3.3(a)</a> bars making false statements of fact to a tribunal.
Letting someone sign your name to a pleading can obviously be risky, and if you do so without even knowing what&rsquo;s in the document, the chances of adverse outcome &mdash;&nbsp;a bench slap, sanctions or worse&nbsp;&mdash; are magnified.&nbsp; Be careful out there, and avoid the professional embarrassment that can come when you give in to a bad idea.

core/freeform

Ethics

Partner

Tom Feher

Legal Ethics, Professional Responsibility and the Business of Law

Brief full of “gibberish” was actually written by client, but lawyer sanctioned with fees, double costs