By Josh S. Tatum, Plews Shadley Racher & Braun LLP
On May 23, The Seventh Circuit held that a lawyer may appeal a district court’s order sanctioning the lawyer for misconduct even when the sanction lacks a monetary component. The decision, Mary E. McClellan v. Elain E. Bucklo, Nos. 15-2752, 15-3410, affirmed an order from the Northern District of Illinois. Judge Richard Posner wrote the unanimous opinion, which was joined by Chief Judge Diane Wood and Judge Ilana Rovner.
The sanctioned lawyer represented the Cook County State Attorney’s Office during discovery in a suit against the City of Chicago alleging malicious prosecution. She told plaintiffs’ lawyers that files they sought no longer existed, which turned out to be false once the court ordered the State Attorney’s Office to allow the plaintiffs’ lawyers to inspect 181 boxes in a warehouse. The district court sanctioned the lawyer, ordering her to pay $35,522.94. Because the State Attorney’s Office paid the sanction on her behalf while the appeal was still pending, the monetary award was no longer part of the sanction. This raised the question of whether the appeal could continue without a monetary award.
In deciding that the lawyer could appeal despite no monetary consequence, the Seventh Circuit overruled Clark Equipment Co. v. Lift Parts Mfg. Co., 972 F.2d 817 (7th Cir. 1992), “to the extent that it deems a formal, but nonmonetary, sanction not appealable.” Citing Keach v. County of Schenectady, 593 F.3d 218, 224–26 (2d Cir. 2010), the court also points out that “eight federal courts of appeals have held that significant nonmonetary sanctions imposed by a federal judge on a lawyer appearing before him are appealable, at least if imposed by formal order as in the present case.” The opinion is available online here.
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