Can the pandemic provide an excuse for sanctionable conduct?

As we enter our ninth month of the pandemic and COVID-19 numbers are surging across the country, lawyers and judges alike are bracing for newfound full or partial shutdowns. If and when the shutdowns occur, our court systems will undoubtedly slow down, creating a bottleneck effect, just like what happened in the spring. And when that occurs, litigators run the risk of losing track of, or access to, case-related court filings.

If this scenario should come to pass, and a lawyer’s access to court records is limited because of shelter-in-place orders, are sanctions appropriate if a lawyer inadvertently misstates the record on appeal due to the inaccessibility of that information?

This very question was at issue in a case before the 6th U.S. Circuit Court of Appeals, Saenz v. Kohl’s Department Stores.

The personal injury case arose from a slip and fall in a department store;  the plaintiff appealed a summary judgment grant in favor of the defendant. On appeal, the crux of the plaintiff’s argument was based on an interrogatory answer that was never signed nor included as part of the record on appeal.

After upholding the lower court’s grant of summary judgment, the 6th Circuit considered Kohl’s motion for sanctions against the plaintiff and her appellate counsel.

The court explained that, “Kohl’s has moved for sanctions, arguing that this appeal is frivolous because ‘Saenz’s entire appeal is premised on an interrogatory answer’ that ‘is not part of the District Court’s record.’”

After declining to impose sanctions on the plaintiff since there was no evidence that she harbored an improper motive in bringing the appeal, the court then turned to the motion for sanctions against her appellate attorney. The court explained that sanctions against counsel are appropriate where  “an attorney has engaged in some sort of conduct that, from an objective standpoint, ‘falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.’”

After reviewing the attorney’s conduct in the case, the court acknowledged that  he repeatedly referred to the unsigned interrogatories even after it was pointed out to him that they were never signed and weren’t part of the record on appeal, and that such conduct was “unprofessional and serious enough to meet the standard for imposing sanctions.”

Nevertheless, the court declined to impose sanctions given the unprecedented effects of the pandemic-related stay-at-home orders. The court determined that it would exercise its discretion “‘not to sanction’ counsel. … No doubt, it was careless to quote the unsigned Interrogatory 9 and then appeal based on that error. But we appreciate that these are trying times. … Michigan stay-at-home order due to COVID-19 was in effect at the time Saenz filed this appeal, which may have limited her attorney’s access to the record. In these circumstances, we choose to give him the benefit of the doubt.”

This case is one more example of the extraordinary impact that the pandemic has had on the world, our country, and our court system.

Although there are now vaccines, their widespread implementation is, at best, months away.

For now, our only option is to do our best in the face of uncertainty, and, like the 6th Circuit judges did, consider cutting others a break when their best just might not be good enough. In the meantime, stay safe everyone, and don’t be too hard on yourselves — or those around you.

Nicole Black is an attorney, author and  journalist in Rochester, New York. She also is the legal technology evangelist at MyCase legal practice management software.