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Court Uses Cartoon to “Illustrate” Duty of Candor for Counsel

December 12, 2014

In Employers Insurance of Wausau v. McGraw-Edison Co., the Honorable Robert J. Jonker literally illustrated his confusion (and frustration) with counsel for one of the parties by starting an order with the following cartoon:

So what happened? On December 2, the parties had a status conference before the Court to discuss scheduling and other issues related to a motion to enforce a settlement agreement. The settlement agreement provided that any dispute about the settlement would be commenced and resolved in the United States District Court for the Western District of Michigan. At the settlement conference, no party objected to the Court’s jurisdiction.

The Court subsequently learned later that same day that one of the parties was filing a motion in New Jersey Superior Court asking the state judge to enjoin the parties from enforcing the settlement agreement in federal court.  Moreover, the same lawyer whose name appeared on the motion papers in New Jersey attended the scheduling conference before Judge Jonker, yet “did not mention or even hint that he was planning to file a motion in New Jersey Superior Court to enjoin the parties from proceeding here in Michigan.”

After noting the clear prohibition on the power of a state court to enjoin federal court proceedings in in personam actions, the Court went on to explain its confusion and frustration with counsel:

But regardless of what happens in New Jersey, nobody likes having someone build or attempt to build a brick wall in a bedroom or a courtroom overnight, especially without providing even the common courtesy of advance notice of the attempt—especially when the interested parties are already gathered in the courtroom. More than that, at least in the Western District of Michigan, this kind of behavior by counsel would—barring some explanation—likely fall below the expected standard of practice for candor with the Court and the other parties. Of course, there may be explanations or circumstances of which the Court is unaware. Maybe it really was something the Court said. Or maybe there is some other misunderstanding. But at a minimum, prompt explanation is needed.

The Court ordered the offending counsel to submit a written explanation of his actions within seven days. The Court also ordered the offending counsel to retain local counsel under Local Civil Rule 83.1(f) and ordered local counsel to review and approve every paper filed in the case and appear at all hearings and other proceedings before the Court.

It may sound cliché to counsel who do not practice regularly in the Western District of Michigan, but there is a different expectation of counsel in the Western District of Michigan than in many other courts. The district enjoys a high level of collegiality and respect between the bench and bar. With that comes greater expectations on counsel, both in their communications with opposing counsel and as officers of the Court. There is no doubt that Judge Jonker is correct that “at least in the Western District of Michigan, this kind of behavior by counsel would — barring some explanation — likely fall below the expected standard of practice for candor with the Court and the other parties.”

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