The US District Court for the Eastern District of Michigan handed down its order on the motions for sanctions against Plaintiffs' counsel, the Team Kraken. The decision, as expected, went against Team Kraken. It s a long order, 110 pages, covering the jurisdiction and authority of the court, the standards for imposing sanctions, the procedure to date, the factual bases for sanctions, and individually for the offending conduct the of the attorneys sanctioned. There are a couple of points want to note today, before a longer discussion (perhaps) tomorrow.
The primary Plaintiffs' lawyers were Lin Wood, Sydney Powell, Howard Kleinhendler, Stefania Junttila, Julia Haller, Brandon Johnson, Scott Hagerstrom. Their misdeeds and misconceived arguments are set out in detail. They got what they deserved: monetary sanctions, order to take CLE (to be attested by counsel in Michigan), and referral for disciplinary proceedings including disbarment. More about them in a later post.
Two lawyers played much smaller roles: Emily Newman and Gregory Rohl. Newman was contract lawyer, did not have a role in drafting the complaint, and had quite limited work on the case (about 5 hours). (34) Rohl was local counsel. He filed the papers at the request of the lead counsel, and, he said, reviewed the complaint before filing -- 830 pages in about an hour. (36). They both received sanctions. In fact, all of the lawyers are subject to the same set of sanctions: jointly and severally liable for Defendants' fees (excluding Davis), completion of 6 hours of CLE credits on pleading standards and 6 hours on election laws, and all were referred to their respective Bar for disciplinary investigation and proceedings.
Newman's name was on at least some of the offending papers, in particular the initial and amended complaint. In permitting (or agreeing) to have her name on the papers, she endorsed the papers, took responsibility for the papers complying with Rule 11 and attested that the papers were filed in good faith and a proper purpose. She did not withdraw her name from any of the papers, and did not disassociate herself from the failure to voluntarily and timely dismiss the complaint when the complaint became moot. She signed on. Rohl is the same boat. He signed the papers and never withdrew.
It is not new that sanctions can be imposed on local counsel for papers drawn up by lead counsel. The days of "dropbox" local counsel have been long gone. There is no dispute that local counsel vouches for what they file and that they have to review the papers to make sure a reasonable attorney would file them. Nor can local counsel get protection by having lead counsel do their own filing after the initial papers and pro hac admission. In the jurisdictions where I practiced, the rules required local counsel to be on every paper filed and affirm that they would ensure compliance with all of the rules. So Rohl goes with Powell and Lin.
Newman is, I think, a more sympathetic case. Contract lawyers have little control over anything, lead economically precarious lives, more so that other attorneys I believe. She put in few hours and had no part in the worst papers. But her name was on them, and other offending papers. That put her on the same block to be chopped along with Powell and Wood. For us, that is other lawyers, she an example of risks exceeding responsibility and compensation. Does she deserve the same treatment as Powell and Wood and thier cohort? Perhaps not (I think not). But how fine should the lines be drawn in this case? I see reasons for the judge to decline making distinctions, e.g., all signed the papers, none took proper steps to withdraw or amend, none investigated any of the allegations or claims before filing (or even after I think). Lie down with dogs..
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