Federal judge orders sanctions without deciding whether lawyer lied about mother's death
A federal judge on Monday said blown deadlines and failure to follow court practices provided enough reason to sanction two lawyers without deciding whether one of them lied about the death of his mother.
U.S. District Judge Allyne Ross of the Eastern District of New York publicly reprimanded the lawyers on Monday and awarded the defendants attorney fees associated with the violations, to be determined by a federal magistrate, the New York Law Journal (sub. req.) reports.
The sanctioned lawyers are John Nonnenmacher and Jason Leventhal, who represented a client in a police brutality suit against New York City. Nonnenmacher filed an appearance as trial counsel in February, while Leventhal had handled pretrial work.
Leventhal had claimed Nonnenmacher falsely told him his mother had died on the scheduled trial date; Nonnenmacher says it was a misunderstanding that could have been cleared up had he not suffered a severe illness at that time. Leventhal discovered Nonnenmacher’s mother had not died after hiring a private investigator.
According to Ross’ decision (PDF), the problems began after Nonnenmacher was brought into the case. Nonnenmacher sought an extension for pretrial submissions, citing the loss of “a close family member” and the need to console his mother. After the deadline was extended, Nonnenmacher sought even more time. When the submissions were filed, they didn’t comply with court rules for courtesy copies of proposed exhibits, and they didn’t include objections to defense exhibits, Ross said.
Both the defense and the judge had trouble reaching Nonnenmacher, spurring the judge to order him to supply a working telephone number. None was supplied, Ross said. Nor did Nonnenmacher supply copies of proposed exhibits. Instead, Nonnenmacher sought more time in a letter, citing a move to a new law firm, other trials and the hospitalization of his mother.
After receiving the letter, Ross warned Leventhal that he was still a lawyer on the case and she would hold him responsible for meeting deadlines. At a pretrial conference, Nonnenmacher failed to bring his document folder with proposed exhibits. After that, “plaintiff’s counsel continued to miss deadlines and thereby violate court orders,” Ross said.
Leventhal informed the court on the scheduled trial date that Nonnenmacher’s mother had died. Two days later, Leventhal told the judge he had learned from Nonnenmacher’s wife that his mother was alive but hospitalized, and Nonnemacher had been taken to the hospital with an apparent heart attack or panic attack.
On the weekend before the new trial date, the plaintiff voluntarily dismissed the case.
Ross said she couldn’t conclude the suit was frivolous. “As any seasoned litigator well knows, the final stretch of trial preparation can lead to surprises,” she wrote.
But violation of scheduling orders and court rules, and appearing unprepared at a hearing did warrant sanction, Ross said.
“The trouble is whom to blame for this conduct,” Ross wrote. “Mr. Leventhal has consistently pointed the finger at Mr. Nonnenmacher, arguing that Mr. Nonnenmacher’s retention as lead trial counsel in the final month of this five-year litigation makes him responsible for any violations of court orders that postdate his retention. …
“But Mr. Leventhal’s frustrations do not excuse his conduct. Mr. Leventhal has exhibited a remarkably cavalier attitude toward his obligations as counsel of record in this matter. …
“It strikes the court that the significant time and resources Mr. Leventhal invested in pointing fingers at the trial counsel he selected would have been better spent advocating for his client.”
Turning to Nonnenmacher’s conduct, Ross said he should have provided prompt notice of any mental or physical condition that made him unable to comply with court orders, and he should have withdrawn from the case if he couldn’t continue the representation.
Leventhal told the New York Law Journal that he respected Ross’ decision and he expected to be vindicated. “This is the first time in my 18-year legal career that my professionalism and ethics have been called into question,” Leventhal said.
He added that he had the “highest regard for my obligations as an officer of the court and to my clients. When I began to doubt my co-counsel’s veracity, I took immediate steps to investigate and reported my findings to the court. When my co-counsel missed deadlines that he had agreed to meet, I assisted him.”
