7th Circuit, Attorney Misconduct, Benchslaps, Legal Ethics, Richard Posner

A Benchslap for Kirkland & Ellis, from Judge Posner and the Seventh Circuit

kirkland ellis logo.JPGIs the customer always right? In the legal profession, not necessarily. As a lawyer, sometimes your job is to talk some sense into your client — and to refuse to move forward if your client, ignoring your advice, orders you to prosecute frivolous (or borderline frivolous) litigation.

Perhaps this lesson needs to be learned by Kirkland & Ellis. The super-prestigious firm, known for its world-class litigation practice, recently got benchslapped by the Seventh Circuit. From Judge Posner’s opinion:

[T]he defendants’ motion for sanctions should not have been denied. The plaintiffs’ lawyers [at Kirkland] may secretly agree, for they make no attempt to counter the arguments for sanctions made in the defendants’ brief even though the district judge denied the motion without explanation. They follow suit by merely asking us, without explanation, to affirm the denial.

The motion complained that Carr is harassing the defendants with repetitive litigation, including a suit — this suit — that borders on the frivolous, even though he is an immensely successful lawyer represented on appeal by one of the nation’s premier law firms, Kirkland and Ellis, as well as by his son Bruce Carr of the Rex Carr Law Firm, which the plaintiff formed after the break-up of his old firm.

At least Judge Posner referred to K&E as “one of the nation’s premier law firms.” Slap that up on the Kirkland website?

The National Law Journal offers some background on the complex and contentious case:

Illinois class action lawyer Rex Carr’s drive to squeeze $20 million in compensatory damages out of his former law firm partners in a fee dispute slammed into a major barrier this week.

The 7th U.S. Circuit Court of Appeals not only upheld the lower court’s dismissal of the case, but also overturned that court’s rejection of sanctions against Carr and his son Bruce Carr. The father and son, who are partners at the East St. Louis, Ill.-based Rex Carr Law Firm, represented the senior Carr in the U.S. District Court for the Southern District of Illinois….

Carr filed the lawsuits in the wake of his departure from Carr Korein Tillery in 2003, claiming the partners failed to honor a 2004 pact for sharing the fees. The 7th Circuit opinion said Carr was rehashing old claims and stretching the Racketeer Influenced and Corrupt Organizations Act to bring his case in federal court. Neither of the Carrs would comment.

Aaron Zigler of Korein Tillery, which represented itself and the individual defendants (along with Jenner & Block), provided ATL with this statement:

Over the last six years, Rex Carr has sued Korein Tillery or its individual partners eight different times for the same claim. Each of those cases has been dismissed. [This week]’s decision by the United States Court of Appeals for the Seventh Circuit should finally bring a halt to this seemingly endless litigation.

In an opinion authored by the esteemed Judge Richard Posner, the Court found that the litigation was “groundless,” that Carr’s suit “was so lacking in merit that its pursuit by the plaintiff indicates a motive to harass,” and that Carr was “out of control and his lawyers are neglecting their duties as officers of the state and federal courts by failing to rein him in.” Based upon his misconduct, the misconduct of his lawyers, and his repeated refusal to accept adverse court rulings, the Seventh Circuit remanded the case to the Federal District Court to impose sanctions against Carr and other culpable persons, and for consideration of an injunction against similar lawsuits.

Going back to Judge Posner’s opinion, he was not a fan of the appellate work of Kirkland and the lead partner, Jonathan Bunge (emphases added):

Although the suit is not frivolous, or at least not utterly so, it is so lacking in merit (most clearly because of res judicata and the one-refiling rule) that its pursuit by the plaintiff indicates a motive to harass. The indication is made conclusive by the vitriolic tone of the complaint, which was drafted by Carr himself, and by the character of his lawyers’ briefs and oral argument in this court.

We note the failure of his lawyers in this court to cite the Schrager case in their opening brief, the disingenuous efforts at distinguishing Schrager and Eskridge in the reply brief, the false statement in the opening brief that “Carr does not seek to relitigate issues from the 2004 litigation,” and the improper attempt to raise issues in the reply brief that had not been mentioned in the opening brief. The failure to even attempt to rebut the cross-appeal on sanctions is also telling.

The opening brief in the Seventh Circuit was filed by Kirkland, by Jon Bunge and one Colleen Sorensen (who no longer appears on the K&E website); the reply brief was signed by Bunge (but not Sorensen); and Bunge handled the oral argument. You can check out the argument transcript here (PDF). It’s strange — it seems Bunge kept trying to come out from behind the podium, and Posner kept ordering him back behind it.

We’re surprised by the Seventh Circuit’s criticism of Jonathan Bunge’s written and oral advocacy. Bunge, a former federal prosecutor, has an impeccable résumé: Princeton, Chicago Law, a D.C. Circuit clerkship, a Supreme Court clerkship (White / OT 1989), and a successful, award-studded tenure in the U.S. Attorney’s Office in Chicago. What happened here?

We won’t find out from Bunge. Through a firm spokeswoman, Bunge declined to comment to the National Law Journal, noting that the litigation is still pending. Neither Bunge nor a Kirkland spokesperson responded to ATL’s inquiries.

Carr v. Tillery – Opinion [U.S. Court of Appeals for the Seventh Circuit (PDF)]
Carr v. Tillery -Oral Argument Transcript [U.S. Court of Appeals for the Seventh Circuit (PDF)]
7th Circuit Blasts Lawyer in ‘Mortal Combat’ Fee Dispute With Ex-Partners [National Law Journal via ABA Journal]

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