Saturday, April 04, 2009, 9:34 AM

4th Circuit Overturns Rule 11 Sanctions Against FEMA Attorney

Yesterday in In re: Bees the Fourth Circuit held that a S.C. district judge abused her discretion in entering Rule 11 sanctions against a FEMA attorney. Even though the FEMA attorney submitted a misleading declaration, made a misleading statement in a brief, and made misleading comments at a motions hearing, the Fourth Circuit's per curiam opinion held that sanctions shouldn't have been entered. With respect to the attorney's statement at the hearing, the Fourth Circuit held that an attorney's oral statement can't be the basis for Rule 11 sanctions unless the the statement advocates a contention previously contained within a written submission. As for the misleading statements in the written submissions, it's unusual for an appellate court to find an abuse of discretion under these circumstances, but that's what what happened yesterday.

The sanctions in this case were pretty harsh. The district court (1) directed the clerk to withdraw the attorney's appearance in the case, (2) instructed the attorney to affix a copy of the sanction order to all future submissions she filed in the D.S.C., (3) stated that any future applications made by the attorney before that particular judge would be summarily denied, (4) ordered the attorney to complete CLE courses in ethics, and (5) directed the attorney to provide a copy of the sanctions order and a transcript of the underlying motions hearing to the disciplinary board for her state bar. The district court also instructed FEMA and the U.S. Attorney’s Office to circulate the sanctions order to all attorneys within their respective offices and to address the matter in CLE efforts.

The attorney must be relieved to have escaped these sanctions.

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