Is the Third Circuit cracking down on lawyers? A look at the recent flurry of sanctions and criticism

It’s been a rough couple months for lawyers in the Third Circuit.

In June, the court in Roberts v. Ferman upheld a district court’s dismissal of a suit based on counsel’s failure to follow the required procedures for recreating gaps in the record. The published opinion contained harsh language directed at the lawyer, for example suggesting that “counsel should take the time to read” the applicable rule.

In September, the court in Hoffman v. Nordic Naturals [disclosure: I represented the appellant on rehearing] granted a FRAP 38 motion against counsel for damages for a frivolous appeal. The panel denied a motion to vacate the frivolous-appeal order even after six law professors filed an amicus brief arguing that the court’s appeal ruling was incorrect, and the court ordered counsel to pay attorney’s fees of $23,000.

In November, the court in Papp v. Fore-Kast Sales held that an appellee forfeited an alternative grounds for affirmance by raising it in a footnote and incorporating by reference its district court arguments.

And just this week the court in Marino v. Usher upheld a $28,000 sanction against a lawyer for his contact with an unrepresented party, after a different panel in June upheld a three-month suspension of the lawyer’s license for the same conduct.

These four decisions all follow in the wake of the court’s widely discussed 2015 opinion in Lehman Brothers v. Gateway Funding. There the court held that a party forfeited a claim because its lawyer failed to include a relevant transcript in the appellate record, describing the omission as “at best show[ing] a remarkable lack of diligence and at worse indicat[ing] an intent to deceive this Court.”

So what’s all this mean? Are these just normal, isolated rulings, or is something broader going on? Is the Third Circuit taking a harder line? I don’t believe that the judges all sat down one day and agreed to start dropping the hammer on lawyers. But my sense is that the landscape is shifting, so that the court today is less reticent than it used to be about criticizing and punishing lawyers whose work it disapproves of.

As a practical matter, rulings like these will make some non-appellate lawyers think twice about handling Third Circuit appeals on their own. Several of the lawyers who’ve gotten in trouble with the court recently appear to have had minimal prior federal appellate experience. And a couple of them had gotten unwanted media attention in the past for coloring outside the lines, like this and this. Lawyers who aren’t familiar with both the rules and the norms of federal appellate practice can unwittingly make serious mistakes.

As these cases show, the price for those mistakes can be stiff indeed.