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NAAUSA Files Amicus In Support of Government Attorney's Appeal of Published Reprimands By Peter Sklarew NAAUSA has filed a brief as amicus curiae in the First Circuit in an appeal involving due process issues of importance to all government litigators. The case, William v. United States, involves a DOJ Tax Division trial attorney and a Treasury Department attorney who had been personally sanctioned by a bankruptcy court, following a 3-day trial on the debtor’s motion for sanctions against the "government" for its alleged violation of an order to produce documents. Although, the debtor had sought sanctions only against "the government," the bankruptcy court fined both attorney’s, enjoined them from seeking government reimbursement, and published a decision which condemned them in caustic terms. On motion for reconsideration, which raised due process issues and other issues and offered additional facts in the form of affidavits, the bankruptcy court reluctantly admitted that it lacked jurisdiction over the Treasury attorney but insisted on maintaining the harsh findings condemning his conduct. Also admitting that it could not fine the DOJ attorney, the bankruptcy court converted the fine into a portion of an attorney fees award previously ordered against the government. The court also conceded that it made numerous factual mistakes with respect to the DOJ attorney, but insisted those mistakes were immaterial and added express findings of bad faith and contumaciousness to support the reimbursement injunction. The court rejected as "almost frivolous" both attorneys’ due process arguments that they had not been afforded appropriate notice of the personal nature and basis of the proposed sanctions, and refused to consider their post-trial affidavits as after-the-fact reminiscences. The attorneys were granted representation by private counsel and appealed, first to the district court. The Attorney General and Secretary of the Treasury separately appealed the bankruptcy court’s reimbursement injunction arguing that it violated the constitutional principle of separation of powers. The district court reversed in part and affirmed in part. It found that the discovery documents at issue were not within the scope of the court’s discovery order, and therefore completely vacated the monetary sanctions. However, the court refused to vacate the condemnatory findings and, instead, found a wholly new factual and legal theory on which to affirm the published "reprimand." It rules that, instead of violating a discovery order, the attorney’s had effectively conspired to make a misleading informal promise to produce other documents and then breached it. (In fact, the DOJ attorney had offered to look for any nonprivileged documents the debtor wished to examine. However, the DOJ attorney was unaware of the existence of the particular documents that became the focus of the court’s wrath, and the Treasury attorney, who knew the documents existed, did not know the attorney had made any such "promise.") For this newly alleged offense, the district court held that the attorneys had been properly reprimanded, not under Fed.R.Civ.P. 37 cited by the bankruptcy court, but under the bankruptcy court’s "inherent power" to discipline attorneys. Finally, the district court agreed with the bankruptcy court that any due process argument was "almost frivolous," insisting that, despite contrary decisions in other circuits, in the First Circuit attorneys are not entitled to advance notice of the specific factual and legal grounds upon which they may be sanctioned. The district court likewise refused to consider the post-trial affidavits. The attorneys appealed to the First Circuit, arguing that their due process rights had been violated, and citing cases from Second, Third, Eighth, and Ninth Circuits for the proposition that attorneys are entitled to particularized notice of the factual and legal basis for proposed sanctions before being required to defend against them. Inherent power sanctions, they argue, have different legal standards than Rule 37. Three amicus briefs have been filed in support of the appeal, including NAAUSA’s, prepared pro bono by Michael J. Tuteur of the firm Epstein Becker & Green, P.C. Separate amicus briefs have also been filed by the Federal Bar Association and by the Department’s Tax Division on behalf of the United States. NAAUSA’s brief emphasizes (1) the serious harm to an attorney’s professional reputation that flows from a humiliating published condemnation without due process and how this erodes confidence in the judicial system, (2) the interference with a government attorney’s ability to adequately represent a client agency if having to worry about personal sanctions whenever the agency is accused of sanctionable conduct, (3) the increasing use by adversaries of government misconduct allegations as a litigation tactic and the difficulty of representing a government agency in the climate that it fosters, (4) the fact that the courts tend to view themselves as having a special responsibility to act as a brake on prosecutorial misconduct and the tendency to take shortcuts that could not survive appellate review of the state bar disciplinary proceeding, and (5) not only is the appellate fact finding always improper, but also, it is particularly troublesome when the appellate court appears to become the advocate for a trial judge in what is already an unfair fight between a judge and a government attorney over judicial accusations of professional misconduct. Oral argument was held on June 5, 1998. The panel focused their questions almost exclusively on whether an attorney may appeal published criticism once a monetary sanction is lifted. Other circuits are split on this issue. * The author is an attorney with the Department’s Tax Division in Washington, D.C. The views expressed herein are his personal views.
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