An Attorney’s Individual Right to Appeal Court Criticism

This post at Split Circuits excerpts a recent Federal Circuit case noting a split among the circuits as to when an attorney in a federal case has a right to appeal separately from his or her client. That decision, Nisus Corp. v. Perma-Chink Systems, Inc., case no. 06-1592 (Fed. Cir. August 23, 2007) notes that while the Seventh Circuit requires the imposition of monetary sanctions before an attorney may appeal a court order critical of the attorney, other circuits, including the Ninth, “permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is itself an appealable sanction.”

Thus in United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000), the Ninth Circuit held that it had jurisdiction to hear the appeal of an Assistant United States Attorney whom the District Court had found violated rule 2-100 of the California Rules of Professional Conduct. The issue in such cases is whether the order constitutes a “sanction.” In Talao, the court holds that a finding that an attorney violated a governing ethical rule is per se a sanction, and thus the attorney may separately appeal it.