The Serious Business of Appealing a Sanctions Order

No question about it: A sanctions order is serious business. When directed at an attorney, it calls into question the lawyer's professional and ethical standing and—at a bare minimum—his or her judgment. When a sanctions order is directed at a client, counsel cannot avoid being cast in its negative shadow, appearing unable to run the case properly. In either situation, the outcome of the litigation will likely suffer.

Courts, acting as the chief guardians of our profession, are duty-bound to impose sanctions where warranted. However, being human, judges sometimes overreact, misunderstand the facts, or simply make mistakes.

An appeal may be the only way to correct such errors. Appealing a sanctions order presents unique considerations that make the exercise different from an appeal on the merits. The following are some strategic suggestions for sanctioned parties seeking to cleanse their wounds on appeal.

Enter Appellate Counsel

The first suggestion for challenging a sanctions order is basic, yet often overlooked: Retain new counsel for the appeal, and certainly do not appeal sanctions pro se. This applies even where trial counsel represented the client excellently, and can legitimately claim to have received a raw deal from the trial court. Appellate courts may be skeptical of trial counsel whose professionalism and integrity have already been called into question. In contrast, new appellate counsel can provide the Appellate Division or the Second Circuit with a credible, dispassionate view of the record and concede error where necessary.

The least productive sort of oral argument on appeal is one in which trial counsel becomes defensive when the panel tries to focus on what went wrong below. A sanctions case that was handled flawlessly at the trial level is a rare bird indeed. For that reason, lawyers who refuse to admit any mistakes may lose credibility at the appellate level.

Download: The Serious Business of Appealing a Sanctions Order.