Judicial criticism of lawyer's performance is not appealable

Attorneys who are sanctioned by the district court can appeal to the Second Circuit to vacate the sanctions. What about attorneys who are criticized by the district court? It happens all the time. Trial judges do throw barbs at the attorneys who practice before them, without actually issuing sanctions. Can that be appealed also?The answer is no.

The case is Keach v. McDaniel, decided on January 28. It all started when Keach, a lawyer, settled a class action suit against County of Schenectady. The County asked plaintiffs (represented by Keach) to hold off on implementing the settlement until after the Sheriff was re-elected. This written request was stamped "confidential - for settlement purposes only." It was also not supposed to be placed on the court docket. In other words, secret.

It did not work out that way. Plaintiff did not go along with the enforcement delay. But Keach asked the district court if that letter could be unsealed, and his letter to the judge revealed the content of the sealed letter. This went into the public docketing system, which meant the confidential request was public. Keach told Judge Treece that he wanted to unseal the letter in order to include it in support of his attorneys' fees appeal to the Second Circuit. When the judge denied the unsealing request, Keach sent this information (including the sealed request) to the Albany newspaper, which of course published the juicy details of the County's request that the settlement be enforced only after the Sheriff's re-election.

Judge Treece was not happy about any of this. He suggested that Keach did not really want to use the sealed letter for his appeal and that the real reason to unseal it was to send it to the newspaper. Making things worse, there was a dispute over what Keach said to the judge's law clerk. The clerk thought that Keach was accusing the judge of improper ex parte contacts with the defendant's lawyer. But rather than sanction Keach for this alleged misconduct, Judge Treece questioned Keach's candor and honesty and said his behavior was "troubling."

The rule is that you can appeal any sanction or a judicial finding that the attorney engaged in misconduct. "A finding that an attorney is guilty of specific misconduct is an adverse decision that can be appealed, even if the court decides that no additional punishment needs to be levied." But there can be no appeal here. What Judge Treece said about Keach was merely "routine judicial commentary or criticism" about a lawyer's performance. The Court of Appeals (Cabranes, Pooler and Lynch) says that "unlike the cases in which we and other Circuits have permitted appeals, the district court here did not make findings of violations of specific professional standards, refer the matter to disciplinary authorities, issue a reprimand, or declare that Keach was guilty of misconduct." What does it all mean? It means the Court of Appeals has no jurisdiction to even decide the appeal.