Two new opinions, including a sledgehammer affirmance of attorney fee denial, sanction, and disciplinary referral

Young v. Smith — civil / attorney fees and sanctions — affirmance — McKee

Hard though it is to believe, not every lawyer reads or heeds my advice not to act as counsel for an appeal in which their own conduct is at issue.* It happened again in this case, and it ended spectacularly badly for the lawyer, Cynthia Pollick: flat denial of her request for over $700,000 in attorney’s fees, plus a $25,000 sanction, plus a disciplinary-board referral.

Among the lawyer’s many expensive mistakes, per the opinion:

  • seeking $733,002.23 in fees after a $25,000 settlement;
  • submitting a bill that was 44 single-spaced pages of teeny tiny type;
  • conducting herself at the fee hearing in a manner that the district judge said “transported [him] to a universe devoid of legal principles and fundamental notions of relevance,” “strange and obstreperous conduct” that “fl[ou]ted any semblance of propriety and decorum”; and
  • arguing she was free to ignore two prior admonitions for her billing practices because those rulings had been affirmed in decisions that were non-precedential.

The court held that 42 USC § 1988(b) permits courts to deny outrageously excessive and conscience-shocking fee requests in their entirety, and held that this standard was met by counsel’s “grossly excessive and absurd, but also fraudulent” request.

The opinion closed by emphasizing the uniqueness of the case and that blanket fee denials should be “exceedingly rare.”

Joining McKee were Shwartz and Cowen. The case was decided without oral argument.

* To be clear, I’m not suggesting that new counsel is any sort of cure-all. It didn’t seem to help earlier this year in Clemens, for example. But new counsel are virtually always going to be in a stronger position to defend district-court counsel’s actions.


Russell v. Superior Court Marshal — civil rights — partial affirmance — Krause

Today’s opinion begins powerfully: ” In this tragic case, after Appellee Jamila Russell enlisted the help of the Virgin Islands Superior Court and its Court Marshals with her truant teenage son, L.T., Deputy Marshal Chris Richardson allegedly shot him at his home, unarmed and mostly undressed, rendering him a quadriplegic.” The Third Circuit held that quasi-judicial immunity does not extend to a suit challenging the manner in which a judicial officer executes a court order. The court also affirmed denial of qualified immunity but ordered dismissal of a gross-negligence claim based on sovereign immunity.

A practice note: the opinion notes disapprovingly that the appellants “take it upon themselves to offer additional clarity by pointing to extra detail found not in the complaint but rather in the Marshals’ own affidavits and an internal incident report,” detail the did not consider in this interlocutory appeal from denial of dismissal.

Joining Krause were Roth and Fisher. Arguing counsel were Gordon Rhea of South Carolina for the mother and her son and Paul Gimenez from the Office of General Counsel for the Superior Court of the Virgin Islands for the defendants.