Banner v. City of Flint

99 F. App'x 29
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 8, 2004
DocketNos. 01-1118, 01-1401 and 02-1297
StatusPublished
Cited by16 cases

This text of 99 F. App'x 29 (Banner v. City of Flint) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banner v. City of Flint, 99 F. App'x 29 (6th Cir. 2004).

Opinion

PER CURIAM.

These consolidated appeals challenge three orders entered by the district court imposing sanctions against attorney Michael Freifeld, his law firm, and attorney Thomas Pabst. The underlying case was settled and dismissed by stipulation of the parties.

The factual circumstances in this case are complex and unlikely to be repeated. At the same time, Messrs. Freifeld and Pabst raise a great number of issues, stemming in part from the complicated nature of the relevant facts. A full discussion of the facts, and a complete analysis of the issues raised, would require a lengthy opinion. This case, however, has minimal precedential value. For these reasons, we have set forth below only an abbreviated discussion of the factual history and the many arguments raised, even though our analysis has been painstaking. Ultimately, we conclude as follows.

With regard to the district court’s sanction order against attorney Freifeld and his law firm: (1) the district court was within its rights to conduct an evidentiary hearing regarding Freifeld’s behavior; (2) the district court properly used a de novo review of the Magistrate Judge’s ruling; (3) the district court concluded correctly that Freifeld did breach Michigan Rule of Professional Conduct 1.6; (4) the district court had the authority to impose sanctions for this breach; (5) Freifeld and his law firm received adequate notice before the district court imposed sanctions; (6) neither the sanction of $15,000 in attorney fees payable to defendant Flint, nor the sanction of $5,000 in attorney fees payable to defendant Rose, were unreasonable, and both sanctions were within the district court’s power and discretion; (7) the district court had the power and authority to impose a $5,000 sanction in the form of a fine payable to the court: (8) the district court followed the proper procedure regarding imposition of the $5,000 sanction, given that the sanction was not in connection with a finding of contempt; (9) nonetheless, the sanction of $5,000 payable to the clerk of court was unreasonable and an abuse of discretion in the circumstances, because the $20,000 attorney fee sanctions alone adequately served the necessary punitive and deterrent purposes. Accordingly, we AFFIRM the sanction against Freifeld and his law firm of $15,000 in attorney fees payable to defendant Flint, and AFFIRM the sanction against Freifeld and his law firm of $5,000 in attorney fees payable to defendant Rose, but we REVERSE the sanction against Freifeld of $5,000 payable to the clerk of court.

With regard to the sanctions against attorney Pabst: (1) the Anti-Injunction Act is inapposite to the question of the court’s authority to sanction Pabst’s conduct; (2) the propriety of the district court’s injunction is controlled by Fed. [32]*32R.Civ.P. 65; (3) the district court’s injunction was arguably overbroad, to the extent it forbade use of the Rose deposition in any case by any attorney, but it was not overbroad as to attorney Pabst, who was acting “in active concert or participation” with Freifeld; (4) despite this possible overbreadth, Pabst’s willful defiance of the district court’s injunction order was completely inappropriate; (5) the district court was correct in its conclusion that Pabst disobeyed a district court order, he did so-deliberately, and he did so beyond a reasonable doubt (see In re Smothers, 322 F.3d 438, 441-42 (6th Cir.2003)); (6) the $1,000 and $2,000 fines payable to the clerk of court, although reasonable in amount, were criminal in nature; (7) as such, the district court had to comply with the notice provisions of Fed.R.Crim.P. 42(b); (8) as to the first contempt fine of $1,000, the district court did not comply with Rule 42(b), because it did not give Pabst adequate notice that he might be subject to criminal sanctions; (9) as to the second contempt fine of $2,000, Pabst did receive adequate notice; and (10) the trial judge did not err when she declined to recuse herself. Accordingly, we AFFIRM the $2,000 sanction against Pabst, payable to the Clerk of Court, but we REVERSE the $1,000 sanction against Pabst, payable to the Clerk of Court, and REMAND this case with directions that the district court may address again the propriety of the first sanction against Pabst.

Finally, we DENY the motion by Flint and Rose for sanctions against Pabst on appeal.

I. BACKGROUND

Michael Freifeld, an associate in the Law Office of Glen N. Lenhoff (the Law Firm), represented Elizabeth Banner in a race discrimination case against Flint. In early 2000, another Flint employee, Vickie Rose, met Freifeld separately to discuss a potential employment-related claim against Flint. During Rose’s meeting with Freifeld, she shared confidential information about her job. During the consultation, Freifeld told Rose that he represented Banner and that he might wish to call Rose as a witness. He asked Rose to sign an affidavit in support of Banner’s claims, but she refused. Ultimately, Rose decided not to retain Freifeld and not to sue Flint, opting instead to avoid disruption of her job.

Freifeld later noticed Rose’s deposition in the Banner case as an employee-witness, and Flint, not being aware of Freifeld’s earlier conversations with Rose, instructed Rose to appear. On March 7, 2000, Rose was deposed by Freifeld without the benefit of personal counsel. Freifeld proceeded to question Rose about the matters discussed during their initial attorney-client consultation. While Rose responded to the questions put to her, Rose later testified that she did not appear at the deposition voluntarily, but was required to do so by her job, and that she did not voluntarily provide information in order to assist Banner’s case against Flint. Rose also said she did not think Freifeld would ask about the confidential matters they discussed, and that Freifeld never told her that she had the right to assert an attorney-client privilege or any other right to confidentiality with respect to her earlier discussions with him.

After Freifeld deposed Rose, he gave a copy of the transcript to Pabst, a lawyer who was not associated with the Law Firm, but was involved in other cases against Flint. Pabst deposed Rose in May in connection with a state-court employment action against Flint and asked about the confidential information she had provided to Freifeld.

[33]*33In June, facilitators in Banner recommended a settlement of $170,000. The parties did not initially agree to this settlement. On June 27, Flint and Rose moved for an order: 1) striking Rose’s deposition testimony; 2) preventing her deposition testimony from being used in any legal or administrative proceeding; 3) barring Banner’s attorneys from inquiring into areas in which Rose could assert her attorney-client privilege; and 4) imposing sanctions. In opposition. Banner argued that Rose waived her attorney-client privilege by voluntarily appearing at the deposition and answering questions without objection. Freifeld and the Law Firm argued that they committed no ethical violations. A magistrate judge held a hearing and issued an order denying the motion to strike on grounds that, even if she did not understand the concept of attorney-client privilege, Rose had, nonetheless, waived her privilege vis-a-vis Freifeld by answering questions at the deposition without a contemporaneous objection.

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Bluebook (online)
99 F. App'x 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banner-v-city-of-flint-ca6-2004.