Misbehaving Attorneys, Angry Judges, and the Need for a Balanced Approach to the Reviewability of Findings of Misconduct

It is likely no surprise that attorneys sometimes fail to abide by the standards of ethical and professional conduct during the course of litigation. This type of misconduct implicates a federal district court judge’s obligation to maintain order and fairness in her courtroom. In order to effectuate this duty, the judge has at her disposal a variety of different tools with which she can admonish or punish an attorney, including the power to impose monetary sanctions. Nonetheless, sometimes judges forego explicitly sanctioning an attorney, choosing instead to express their disapproval of an attorney’s behavior by issuing an opinion including findings of professional misconduct. These findings of misconduct can range anywhere from a general observation regarding an attorney’s “lack of professionalism” to a more extreme conclusion that an attorney participated in “sanctionable, unethical, vexatious, contemptuous and nearly criminal conduct.” Given the potentially significant effects such findings of misconduct could have on an attorney’s professional reputation, attorneys frequently attempt to appeal in order to expunge the relevant findings.