Hello everyone and welcome to this Ethics Alert, which will discuss recent opinion of a U.S. District Court magistrate sanctioning a New York lawyer who claimed that she missed a deadline because of a family emergency but was apparently on vacation. The case is: Siu Ching Ha v. Baumgart Café of Livingston, Civil Action No. 15-5530 (ES) (MAH), and the magistrate’s opinion is here: Ha v. Baumgart Café of Livingston Instagram sanctions
The lawyer, Lina Franco, and her co-counsel, John Troy, filed for an extension of time to file 16 days past the deadline to file a motion for conditional class certification. The lawyer said she had to leave the country for the family emergency and submitted a flight itinerary showing she had flown from New York City to Mexico City on Thursday, November 21, 2016 and stayed there until December 8, 2016.
Opposing counsel filed a motion objecting to the extension and for sanctions claiming that Instagram photos from Franco’s public social media account indicated that she was in New York and then Miami during that period. Franco told the magistrate that she had gone to Mexico City earlier in November and that her mother’s medical diagnosis sent her “into a tailspin” that caused her to miss the deadline and submit an erroneous itinerary.
The magistrate found that “November 21, 2016 was indisputably a Monday, not a Thursday” and, although Franco was in Mexico City in early November 2016, she was apparently in New York City when she missed the Nov. 23, 2016 deadline to file a motion for class certification in a wage-and-hour suit. The magistrate found that Franco deliberately had misled the court and her co-counsel and that her “misrepresentations to the court clearly constitute bad faith and were unreasonable and vexatious, not simply a misunderstanding or well-intentioned zeal.” The magistrate granted the motion and imposed sanctions against Franco in the amount of $10,000.00.
Franco was local counsel in the lawsuit and her co-counsel, Troy, was admitted into the case pro hac vice. Troy told the magistrate that he had e-mailed the motion to Franco on the afternoon of the deadline and had expected her to file it and he was unaware of her alleged family emergency. He said he did not follow up with Franco to make sure the motion was filed because he had worked with her in the past and believed that she was reliable.
Both Franco and opposing counsel sought to have Troy held jointly and severally responsible for the sanction; however, the magistrate did not agree, stating that “(e)ven assuming, solely for the sake of argument, that Mr. Troy had a duty to supervise Ms. Franco and was somehow derelict in discharging that duty, such dereliction falls well short of the standard to impose sanctions”. Opposing counsel requested $44,283.00 in attorney fees and costs; however, the magistrate found that amount to be “unreasonably high” and ordered sanctions in the amount of $10,000.00 to be divided among the three opposing counsel.
Bottom line: This is a very clear example of a lawyer whose false statements in court documents and in a court proceeding were exposed because of social media posts, in this case Instagram.
Be careful out there in our digital social media world…oh and don’t lie and post pictures on social media exposing the lie.
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33761
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