This Is What Happens When a Sanction Motion Backfires
'Go ahead and move for sanctions against opposing counsel,' they said. 'What's the worst that could happen?' they said.
Well, an attorney at the Minnesota law firm Messerli & Kramer, "the worst" was having their sanction motion turned against them -- not by the opposing party, but by the judge.
Good Debt Gone Bad
The kerfuffle began after the firm itself was sued. Messerli & Kramer had sought to collect a debt owed by Jennifer Bendickson, who then sued them for allegedly violating the Electronic Fund Transfers Act. The firm had only gotten oral, not written, authorization to transfer funds out of her bank account, Bendickson alleged. Messerli attorney Derrick Weber responded by warning that, if the case was not dismissed in six days, "Messerli would remove the case to federal court, move to dismiss her complaint, and seek sanctions against her."
It wasn't and he did. Weber sought sanctions against Bendickson's attorney on the grounds that the case was "unreasonable and vexatious," referencing the law that can make attorney's liable for excessive cost. The motion didn't go over well.
Who's Being Unreasonable and Vexatious Here?
As Judge Patrick J. Schiltz notes in his order denying sanctions, which comes to us courtesy of Above the Law, Weber's motion sought to recover Messerli's attorney's fees, "the lion's share of which were incurred in bringing this motion for sanctions."
But Weber himself hadn't made dismissing the lawsuit easy. You see, Weber had claimed that he had a recording between the firm and Bendickson in which she agreed to the debt-collection plan; a recording that allegedly undermined her legal position. But he refused to share it with opposing counsel, as Bendickson "was not entitled to discovery at this stage in the litigation." Bendickson's lawyer said he "hope[d] to respond to the demand" but would need to hear the recording in order to advise his client. He asked for a copy as a "professional courtesy."
"Any reasonable litigator" would have provided a copy, Judge Schiltz wrote. "Weber instead raced to the courthouse -- two courthouses, in fact." Which leads us to this beautiful conclusion:
Indeed, if the Court were forced to sanction anyone, the Court would sanction Messerli, not Bendickson. It is probably true, as Messerli repeatedly points out, that it acted within its rights in refusing to provide the recording to [Bendickson's attorney] and in running to court. But the question of what a lawyer has a right to do is not the same as the question of what a lawyer should do. This Court expects hat members of its bar will treat each other civilly and make every effort to resolve disputes before inflicting costs on their own clients, their opponents, and the Court. Messerli's behavior fell well short of this expectation.
So remember, think twice about moving for sanctions against opposing counsel, especially when you haven't been well-behaved yourself.
- How Not to Be an Egotistical, Myopic Jerk Lawyer (Solo Practice University)
- Nastygrams to Opposing Counsel: How Far Is Too Far? (FindLaw's Strategist)
- Attorney E-Discovery Sanctions at All-Time High (FindLaw's Strategist)
- What to Do When Opposing Counsel Won't Play Nice (FindLaw's Strategist)
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