• April 7, 2010

Civil litigators have a special name for free legal services normally:  “pro bono,” short for “pro bono publico,” translated as “for the public good.”   (And for some civil litigators another term for free legal services : contingent fee work (for a lost case)).

In two recent decisions from the U.S. District Court (D. Minn.) (Judges Patrick Schiltz, Joan Ericksen) highlight yet another variety of free legal services:  due to lawyers’ failure to abide by local rules, these judges have forbidden lawyers from billing their clients for some of the work the lawyers performed — “pro malo” (“for a no-no”) free legal work…

As previously reported by Minnesota Litigator, Judge Schiltz did not like that lawyers submitted “supplemental briefs” without the Court’s permission and he held that the lawyers could not bill their client for that work.

This week, Judge Ericksen lowered the boom on counsel for submitting an affidavit in opposition to a motion for summary judgment days before a hearing on the motion contrary to local rules (this was not the lawyer’s first violation of rules in the case, Judge Ericksen highlighted in her order), and she ruled that the lawyer could not bill his client for that and related legal work.

Minnesota Litigator questioned whether Judge Schiltz’s order had sufficiently appreciated the possibility that the client might have knowingly participated in the violation of local rules or even might have been the driving force.

Queries:  Two instances of the “pro malo” sanction does not quite make a trend but is this form of sanction on the upswing? Could it be subject to challenge?  (One problem with these kinds of sanctions and challenging them is that clients, of course, have very little incentive to challenge what might be thought of as their windfall.  Also, lawyers are presumably hamstrung by Minn. R. Prof. Conduct 1.7 from challenging such a sanction (see Comment 10: “The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client”).   (This tension could be implicated whenever a lawyer, specifically, is sanctioned but it seems particularly inherent and immovable when the sanction, by definition, benefits the client.)

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