In United States v Llanez-Garcia,a federal public defender made an honest mistake. That mistake snowballed into not one but two reprimands from the district court. But the Sixth Circuit recognized the high stakes that disciplinary matters raise for attorneys: “An attorney’s reputation is her most valuable possession. It forms the basis for her peers’ view of her and plays an important role—often a determinative one—in how she advances her career.” The Sixth Circuit wiped away the tarnish to the public defender’s reputation left by the reprimand orders, clarifying that nothing short of bad faith warrants sanctions under a court’s inherent authority.
Debra Migdal was appointed to represent a defendant charged with alien smuggling. Migdal intended to challenge the legality of the traffic stop that lead to the charges against her client. She sent a discovery request to the prosecutor. But that request did not yield the video from the Border Patrol’s dashboard camera. So Migdal issued subpoenas to the Border Patrol and the Ohio State Highway Patrol directing to produce the video of the traffic stop (among other things). Unlike its civil counterpart, the criminal subpoena form commands the recipient to appear in the district court at a specified time and it doesn’t suggest the mere production will suffice. Adhering to the form, Migdal wrote in a date and time, though no hearing was scheduled for the case at that time.
When the prosecuting attorney learned of one of the subpoenas, he filed a motion to quash it and to sanction Migdal for issuing it. Though the request for sanctions was later withdrawn, the district court issued an order describing the conduct that it found sanctionable and a second order that expressly ordered “a PUBLIC REPRIMAND.”
The district court relied on 28 U.S.C. § 1927, which the Sixth Circuit found unavailing since it only addresses monetary sanctions, and its inherent authority to support its reprimand orders. The Sixth Circuit held that Migdal’s conduct fell well below the “bad faith” necessary to impose such discipline. Bad faith, the Court explained, required something more than just pursuing a meritless claim or position. Because Migdal’s decision to issue the subpoena was not meritless, the reprimand was unwarranted.
The Court made clear that who was “right” mattered little. The critical fact was that Migdal did not act in bad faith. Several attorneys in her office had issued similar subpoenas and there was conflicting authority on whether doing so was permitted under the court rules. The lack of clarity or an option for a document-only response on the subpoena form further weighed against a sanction.
The Sixth Circuit’s decision in Llanez-Garcia doesn’t give attorneys license to violate court rules or pursue meritless arguments. But it underscores the point that reprimands are serious business. They can’t be imposed lightly, and they shouldn’t be imposed over a good-faith error or difference of opinion—the practice of law lends itself all too readily to such things.