Alternative Sanctions in Litigation

Courts may impose non-monetary sanctions on lawyers in litigation. These include what this article characterizes as alternative sanctions because they differ from traditional non-monetary sanctions that affect a lawyer’s ability to litigate a case, such as revoking the lawyer’s pro hac vice admission. Alternative sanctions may further be categorized as reflective sanctions where they are intended to cause the offending lawyers to reflect on their conduct with a goal of reform, or as shaming sanctions where they are intended to shame errant lawyers into improving their behavior and, in addition, to deter similar misconduct by other lawyers. Ordering a lawyer to attend a CLE course is the most common reflective sanction. This sanction requires no public acknowledgement of error by the lawyer. At the same time, judges who order lawyers to attend CLE programs do not believe that the lawyers will change their behaviors or improve their practices solely as a result of the content delivered during those seminars. Rather, self-analysis by the lawyer of the need to change her behavior or enhance her professional knowledge or skills is a principal goal of mandatory CLE attendance. Shaming sanctions include a demonstration of penitence by the errant lawyers. The sanction famously imposed by an Iowa federal court in 2014 in Security National Bank of Sioux City v. Abbott Laboratories is now the leading example of a shaming sanction. In that case, the district court ordered a partner from a global law firm who allegedly engaged in serious deposition misconduct to make a video presentation on appropriate deposition objections and conduct, and distribute the video to other lawyers in her firm for viewing. Although the Eighth Circuit reversed the district court on due process grounds, it did not reject the use of shaming sanctions. In fact, is important for trial courts to have sanctioning options apart from monetary sanctions and non-monetary sanctions that go to the merits or substance of the case, or to the offending lawyer’s ability to practice. The availability of alternative sanctions may be especially important where an errant lawyer’s practice is so thin that she cannot afford reasonable monetary sanctions or, at the other extreme, where the misbehaving lawyer’s wealth makes a monetary sanction proportionate to the misconduct at issue the equivalent of pocket change. This article uses the district court and Eighth Circuit decisions in the Security National Bank of Sioux City case as a framework for discussing and analyzing alternative sanctions in litigation