Lawyer Rule 60'd Into Sanctions; Other Firm Escapes Malpractice - U.S. Fourth Circuit
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Lawyer Rule 60'd Into Sanctions; Other Firm Escapes Malpractice

Note to future lawyers. Here are things you don't do in a deposition, held in an expensive foreign locale, such as Italy: coach witnesses, tell them how to answer questions, or walk out and cancel all remaining depositions without a really good reason.

Such "totally inappropriate" conduct is "deserving of sanctions."

How much in sanctions? Close to a million dollars, with attorneys' fees and expenses included. The original order, however, ordered sanctions against the plaintiffs, not their attorney. After the district court clarified via Rule 60(a), the lawyer's lawyer missed the deadline to appeal.

Lawyer gets stuck with a $1,000,000 tab. Lawyer's lawyer gets a malpractice suit.

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Rule 60(a): Clarifying, Not Changing an Order

The sanctioned lawyer, Mr. Peter Sartin, argued that a Rule 60(a) order is for minor clerical corrections only, and that assigning the sanctions order to a new person goes beyond the scope of the rule.

The Fourth Circuit disagreed with that second bit, noting that this was merely a clarification of the original order, which clearly addressed counsel's conduct, not that of his client. Of note, not only did the same court already evidence its intent with its post-judgment Rule 60(a) clarification (which is being appealed here), but during the original proceeding, it noted:

I thought the conduct of Mr. Sartin was totally inappropriate. And it was an egregious violation of any type of discovery and I do feel that sanctions are appropriate with regard to that.

And

I don't know what they do in Mr. Sartin's district, but we don't do that out here. You do not instruct witnesses how to answer questions, you do not coach witnesses, you do not arbitrarily just get up and leave a deposition. That is totally inappropriate and I think deserving of sanctions.

Malpractice? Schmalpractice. Appeal Would've Failed Anyway

Interestingly enough, the sanctions dispute has already settled between Mr. Sartin and his former client.

So why are we discussing it? Mr. Sartin hired an attorney to appeal the Rule 60(a) order, but that attorney missed the deadline by two days, costing him his appeal. Fortunately for the tardy counselor, thanks to the Fourth Circuit's evaluation of the Rule 60(a) claim, it amounts to much ado about nothing -- the appeal would've failed anyway, and therefore, the attorney can't be held liable for a non-injury.

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