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Sanctions Case Analysis

The multiple opinions in this case leave much uncertain.

About the only thing that is certain is that a court may not dismiss a complaint as a sanction for discovery abuses by an attorney if the client is blameless. That principle is embraced by six of the seven justices.

However, it will be difficult to cite this case as an example of when egregious attorney conduct can be imputed to the client. The lead opinion concluded that it could in this case; however, four of the justices disagreed with that conclusion.

A future defendant carelessly comparing a plaintiff’s conduct to the conduct of the plaintiff in this case will find himself met with an argument that the lead opinion’s holding that the plaintiff was not blameless is not the majority holding.

The lead opinion’s holding that it was proper for the circuit court to require a “hearing on viability” appears to have majority support. The three dissenters objected to the “creative sanction”; Justice Butler made no mention of it in his concurrence.

Such silence could be regarded as tacit agreement. More significantly, though, his legal analysis lends support to such a sanction. Butler emphasized that Rule 804.12(2)(a)3 grants circuit courts broad discretion in imposing sanctions for discovery abuse. Logically, a sanction requiring that a plaintiff demonstrate it has a viable case to avoid dismissal would be within that discretion.

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The effect of attorney discipline is another gray area. The dissent makes much of the fact that Industrial’s attorney was publicly reprimanded because of his conduct in this case.

The lead opinion, however, in footnote 14, cautions that the rules of professional responsibility should only be used in disciplinary proceedings, and that the preamble to the rules state that the rules are not designed to be a basis for civil liability.

When the court adopted the new rules last year, the proper scope of the rules was a common source of debate — whether a violation of the rules by a prosecutor would be used as a basis for relief for defendants, whether a violation of the rules is a basis for civil liability for malpractice to the client, etc.

When such issues arise in the future, the dissent’s discussion, and footnote 14 of the lead opinion, will likely be relevant to the question.

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David Ziemer can be reached by email.

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