Ethics
Sanction affirmed for lawyer accused of cursing and pushing opposing counsel after ‘tense’ deposition
A federal appeals court has affirmed an attorney fee sanction of nearly $12,000 against a Chicago lawyer accused of misleading the court when she denied intentionally pushing an opposing counsel following a “tense” deposition in July 2017. (Image from Shutterstock)
Updated: A federal appeals court has affirmed an attorney fee sanction of nearly $12,000 against a Chicago lawyer accused of misleading the court when she denied intentionally pushing an opposing counsel following a “tense” deposition in July 2017.
The 7th U.S. Circuit Court of Appeals at Chicago affirmed the sanction for Caryn Shaw of Chicago, who was suing the Chicago Board of Education for removing one of her clients from a public meeting.
“By all accounts,” the appeals court said, the deposition “was a tense encounter, with the board’s attorneys objecting early, often and at great lengths.”
Two lawyers representing the school board attended the deposition, including the school board’s assistant deputy general counsel, Lisa Dreishmire, according to the July 29 opinion.
Witnesses at an evidentiary hearing said after the deposition, Shaw screamed at Dreishmire, asking her, “What the f- – – is your problem?” Dreishmire told the court reporter to go back on the record.
“No, this is personal,” Shaw responded.
“This is where the parties’ recollection of the event diverges,” the 7th Circuit said.
Dreishmire said Shaw intentionally pushed her out of the room. Shaw said as she left the room, she made “unintentional contact” with Dreishmire.
Dreishmire called police, filed a disciplinary complaint and told the court about the incident that she described as “criminal assault and battery.” In a brief seeking discovery sanctions, Shaw maintained that the contact was unintentional. In a later response, Shaw did not directly contest Dreishmire’s account.
Following an evidentiary hearing in October and November 2017, U.S. District Judge Gary Feinerman of the Northern District of Illinois found that Shaw “swore at Dreishmire and then intentionally pushed her with force sufficient to knock her backwards.”
Feinerman also said Shaw’s description of the contact as unintentional was false and vexatious. Shaw had maintained in an opening statement at the hearing that the incident was “an inadvertent brushing.”
Feinerman removed Shaw from the case and ordered her to pay reasonable attorney fees and costs incurred by the defendants in litigating the physical contact issue. Feinerman later said Shaw and her co-counsel had to pay $11,920 in attorney fees and costs.
The 7th Circuit affirmed the sanction against Shaw but not against her co-counsel.
Feinerman’s factual findings “cannot be an abuse of discretion because the record amply supports them,” the 7th Circuit said.
Witnesses for both sides testified that Shaw initiated the encounter by swearing, and most of the witnesses testified that Shaw physically touched or pushed Dreishmire.
Shaw contended that her conduct was not vexatious because she was acting on the information that she had available.
“This argument is completely implausible,” the 7th Circuit said.
“We agree with the district court that Shaw ‘must have known that her representations were false’ because she was ‘a direct participant in the confrontation.’ That constitutes bad faith and vexatious conduct under our precedent, and the district court did not abuse its discretion in finding as much,” the appeals court said.
Judge Candace R. Jackson-Akiwumi, an appointee of President Joe Biden, wrote the panel opinion. The opinion was joined by Judge Doris L. Pryor, also a Biden appointee, and Judge Thomas L. Kirsch II, an appointee of former President Donald Trump.
Anne Shaw of Shaw Legal Services in Chicago, who is representing Caryn Shaw, told the ABA Journal in a statement that the decision raises “deep concerns for other attorneys’ due process rights in sanction proceedings going forward.”
Shaw and Anne Shaw agreed with the 7th Circuit’s decision to vacate sanctions against Shaw’s co-counsel. But they are disappointed in the appeals court’s decision to affirm sanctions against Shaw, the statement said.
“We continue to maintain that attorney Caryn Shaw did not mislead the trial court in her pleadings and oral statements,” the statement said.
“As the record indicates, her written representations in pleadings and orally before the trial court were based on the statements of third parties, … which supported her representations that she did not intentionally make contact with opposing counsel. This was coupled with her own perceptions of the incident,” the statement said.
Shaw didn’t testify at the evidentiary hearing “on the advice of counsel due to a potential pending criminal investigation, which was eventually dropped,” according to the statement.
Shaw has never been sanctioned or admonished before or since this incident, the statement said. She is now “exploring her options.”
The case is Vega v. Chicago Board of Education.
Law360 had coverage of the opinion.
Updated July 31 at 11:50 a.m. to include the statement from Anne Shaw.
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