Well, Dr. Orly Taitz and the other Birther lawyers should be afraid. Be very afraid. As the Birther lawyer Van Irion just learned in Tennessee, the courts can do bad things to lawyers who file silly little frivolous vexatious lawsuits and then string them out. Through the sanctions allowed in 28 U.S.C. § 1927, bad little lawyers can be made to pay the legal fees of their opponents. Last night I reported on Van Irion’s problem here:
But today I want to focus on the actual provisions and applications of 28 U.S.C. § 1927. Here is the short 53 word statute:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
Now, for a brief overview:
It is becoming increasingly common for a prevailing party in federal court to seek attorneys’ fees from the losing party’s attorney under a combination of Federal Rule of Civil Procedure 11, 28 U.S.C. § [section]1927, and the court’s companion “inherent powers.” Unlike Rule 11, though, “awards pursuant to section1927 may be imposed only against the offending attorney; clients may not be saddled with such awards.”
Rule 11 sanctions are tied to a signed filing, while [section] 1927 examines the attorney’s course of conduct throughout the entire litigation. Therefore, serious misconduct not necessarily involving the signing of a pleading, memorandum or motion can qualify for punishment of the attorney. Rule 11 also provides the allegedly erring attorney the “safe harbor” of a 21-day notification, while [section] 1927 does not.
Section 1927 misconduct is cumulative in nature, while Rule 11 misconduct is not. Inasmuch as a [section] 1927 sanctions motion may come without warning and may involve monetary sanctions much more substantial than those associated with a Rule 11 motion.
Not all questionable conduct, however, is sanctionable under [section] 1927. In the 11th Circuit, it is well settled that “this section is not a ‘catch-all’ provision for sanctioning objectionable conduct by counsel.” Section 1927 requires the touchstone of bad faith, which is more than mere negligence or lack of merit.
The 11th Circuit has held that an attorney who “knowingly or recklessly pursues a frivolous claim” acts in bad faith. For sanctions to be appropriate, counsel must have engaged in unreasonable and vexatious conduct; this conduct must have multiplied the proceedings, and the amount of the sanction cannot exceed the costs resulting from the conduct. Sanctions are not warranted simply because counsel’s general performance or particular decision making did not rise to the highest standards of the profession.
From, The Song of the Sirens — Sanctioning Lawyers Under 28 U.S.C. 1927 (see Note 2 for full article.) we learn that:
The statute was first enacted in 1813, and was amended in 1980 specifically to add attorneys’ fees to the list of possible sanctions. As a result of this amendment, courts have invoked this statute more frequently. The federal courts, however, evidence widely disparate views concerning the applicable standard for assessing whether an attorney has multiplied the proceedings “unreasonably and vexatiously” within the meaning of the statute. Some circuits impose a section 1927 sanction when an attorney’s conduct is merely negligent, while other circuits require a showing of reckless conduct or conduct evidencing willful bad faith.
I won’t copy and paste everything from this law review article and the other one, because there are links to all of them in the notes and pdf copies to boot for those who want to print them out. But the issue in these types of sanctions seems to be figuring out when has the attorney gone too far in his representation. Some courts use a subjective bad faith standard, and other courts an objective unreasonableness test. The overall bad thing that the statute seeks to prevent is delays in litigation.
This is a penal statute, which is meant to punish the offending attorney. As such, there needs to be some element of bad faith – either intentional or negligently through recklessness. Simply put, the fact that the attorney either knows or should have known that what he is doing and claiming is either without merit, or presented for the wrong reasons.
I think that under either standard, the Birther lawyers are on very thin ice. The Bad Faith Standard Courts require an intentional act of bad faith, and what else is filing a lawsuit based on Minor v. Happersett as a precedent for determining natural born citizenship while ignoring or mischaracterizing Wong Kim Ark. Sorry, but not necessary to resolve these doubts is pretty clear.
In the Unreasonableness Standard Courts, the Birther lawyers are in even worse shape, because here, mere negligence is enough to subject them to the sanctions. Here, the Courts don’t have to find that the lawyer is doing it on purpose, but can find guilt because the lawyer should have known better, whether he did or not.
With all this in mind, here is where Dr. Orly Taitzis in genuine legal peril. The Ninth Circuit Court of Appeals uses the Bad Faith Standard. In a recent case they upheld $247,397.28 in attorneys’ fees and $10,808.76 in costs, under 28 U.S.C. § 1927. In Lahiri, an Indian composer tried to get rights in music he had composed for a film company in India. Along the way the Lahiri Court cited these previous holdings:
1. attorney’s knowing and reckless introduction of inadmissible evidence was tantamount to bad faith and warranted sanctions under § 1927 and the court’s inherent power;
2. attorney’s reckless misstatements of law and fact, combined with an improper purpose, are sanctionable under the court’s inherent power;
But, let’s look at some of the things Kornarens, the Lahiri lawyer did to get sanctioned in such a heavy amount. In supporting the current matter at bar, the Lahiri Court noted:
Unequivocally, the law of India vests a copyright in a movie score composed for compensation in the film
company; the composer has no copyright interest absent an agreement to the contrary. Had Kornarens, a self-described experienced copyright lawyer, made even a cursory investigation into the circumstances of Lahiri’s 21-year old composition of Thoda, he would have known Lahiri had no copyright interest in music he composed for hire.
On appeal, Kornarens argues he reasonably relied on an expert in Indian law, as well as his unsupported assertion that Lahiri represented he owned the Thoda copyright. The district court did not abuse its discretion in rejecting similar arguments. The law of India is straightforward and the IPRS decision is in English. Indeed, there is nothing legally remarkable or unique about applicable Indian law that would reasonably require expert advice. Generally, a composer who creates a film score for hire forfeits a copyright interest in his work.
Kornarens attempted to justify his untenable interpretation of Indian copyright law by misrepresenting the IPRS decision: he cited the immaterial concurring opinion as the Indian Supreme Court’s holding. He repeatedly misquoted Gee Pee Films, Pvt. Ltd. v. Pratik Chowdhury and Others, G.A. No. 2756 of 2001 and C.S. No. 356 of 2001, for the proposition that a film producer does not have a copyright interest in songs that it commissions. Gee Pee expressly involved non-film music. Kornarens inserted the parenthetical “(film company)” into a quotation from Gee Pee to support his misrepresentation the case involved Indian film music.
The district court did not abuse its discretion in concluding Kornarens’ misrepresentations of Indian law evidenced his bad faith and recklessness in pursuing Lahiri’s copyright claim.
[T]he court did not abuse its discretion in finding that Kornarens acted recklessly and in bad faith in pursuing a frivolous copyright claim for five years. Kornarens’ amended complaint asserted a contrived United States copyright claim created by registration of a 21-year old composition after his Lanham Act and unfair competition claims were placed in jeopardy by the Supreme Court’s grant of certiorari in Dastar. Lahiri composed Thoda for a film produced in India, under an agreement with an Indian film producer for financial compensation. Pursuit of a copyright claim without inquiring whether Lahiri composed Thoda for hire would be reckless under the laws of either India or the United States. The district court did not err in its factual findings or abuse its discretion in concluding that Kornarens’ repeated misrepresentations of Indian copyright law clearly evidenced his recklessness and bad faith.
After the sanctions motion was filed and the district court’s decision was impending, Kornarens attempted to cause the judge’s recusal by retaining the judge’s former law firm to defend him against the sanctions motion. The district court’s consideration of this manipulative tactic as evidence of bad faith was not an abuse of discretion. The district court reasonably inferred that Kornarens’ intent was to have the case assigned to a new judge who would be unfamiliar with the protracted history of this litigation.
Kornarens argues that no single instance of misconduct cited by the district court justified the imposition of sanctions. Kornarens ignores the record. The district court’s bad faith finding was based on the cumulative effect of his litigation conduct for more than five years. Clear and convincing evidence supports the district court’s conclusion that Kornarens acted recklessly and in bad faith and his conduct caused unreasonably protracted and costly litigation over a frivolous copyright claim. Accordingly, sanctions were not an abuse of discretion.
Here is a pdf of the case:
and a link to it:
Remember that Dr. Orly Taitz has resurrected a case that has been dead for three years in the 9th Circuit Court of Appeals.
It would take a book to recount all the mistakes, misrepresentations, and errors that were made in this case. So, I am not even going to try to cover them all. But Taitz escaped 28 U.S.C. § 1927 sanctions when that case ended. Now, she is using an idiotic expert, Sheriff Joe Arpaio, who supposedly can prove forgery of an online image, without ever having seen the original document. She has re-opened the case. Like Kornarens above, she doesn’t need to rely on an expert to know the whole forgery thing is nonsense.
I believe that Taitz has exposed herself to 28 U.S.C. § 1927 sanctions, and also left the door open to evidence being presented from all the other cases she has been on as proof of her bad faith in this case. Pattern evidence is usually not admissible, but it can be used, for example, to prove there was no mistake. But, in this case, the defendant is Obama, who is the same defendant as in her other cases. Even the name calling and harassment of judges would come in.
If the Defendants so move, and if this pattern evidence comes in, Dr. Orly Taitz should look for a TSUNAMI of a sanction.
Note 1. The Image. This is from the 1934 musical, Dames. There was a little “identity” issue in one of the musical numbers, as Wiki notes:
The musical sequences in Dames were designed, staged and directed by Busby Berkeley – the Warner Bros. publicity office invented the phrase “cinematerpsichorean” to describe Berkeley’s creations.By this time, after the success of 42nd Street, Footlight Parade and Gold Diggers of 1933, Berkeley had his own unit at Warners, under his total control as supervised by producer Hal Wallis.
“I Only Have Eyes for You” – by Harry Warren (music) and Al Dubin (lyrics). At one point in this number, sung by Dick Powell to Ruby Keeler, all the girls in the chorus wear Ruby Keeler masks as they move around the stage, but in just about every shot, the real Keeler passes by the camera briefly. In 1989, this song won an ASCAP Award as the “Most Performed Feature Film Standard”.
And of course I have a youtube video of this. The hijinks start about 3:40 in:
Note 2. Boston College Law Review Article on 28 U.S.C. § 1927. Here is a link to The Song of the Sirens — Sanctioning Lawyers Under 28 U.S.C. 1927 by Janet Eve Josselyn.
and also a pdf of the article:
Note 3. Washington and Lee Law Review Article on 28 U.S.C. § 1927. Here is a link to When is an Attorney Unreasonable and Vexatious?
and also a pdf of the article:
Note 4: Loyola of Los Angeles Law Review article. Here is a link to And the Chill Goes on – Federal Civil Rights Plaintiffs Beware: Rule 11 Vis-a-Vis 28 U.S.C. 1927 and the Court’s Inherent Power by Danielle Kie Hart.
and also a pdf of the article:
Note 5: Be afraid. Be very afraid. This is an interesting phrase. Here is what it means, and the origin is interesting, too, as you can read at the link:
Ostensibly, a warning that something dangerous is imminent. In reality, this is usually said with comic intent. The thing being warned of is more likely to be mildly unwelcome than actually dangerous; for example, “That fierce librarian was asking about your overdue books – be afraid, be very afraid.”