Is 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 is a lesson that 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 (PDF):

[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?

David W. Glasser, a local attorney in Daytona Florida, received a major benchslap from U.S. District Judge Gregory Presnell. It is short, it is sweet, and it appears entirely deserved. Here’s the order from the court. Glasser is the plaintiff’s lawyer:

This matter came before the Court without oral argument upon consideration of Plaintiff’s, Carolyn Nault (“Plaintiff”), Response to this Court’s Order and Motion for Voluntary Dismissal (collectively, the “Motion”) (Docs. 21 and 22). Upon review, it is

ORDERED that the Motion is DENIED without prejudice for failing to comply with
Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED.R. CIV. 41(a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

Ouch.

Just for good measure, Judge Presnell also ordered Glasser to show the judge’s order to his client:

It is FURTHER ORDERED that Plaintiff’s counsel, David W. Glasser, shall re-read the Local Rules and the Federal Rules of Civil Procedure in their entirety. Furthermore, Mr. Glasser shall personally hand deliver a copy of this Order, together with the Court’s exhibit attached thereto, to his client, Carolyn Nault, by no later than Monday, September 21, 2009. By no later than Wednesday, September 23, 2009, Mr. Glasser shall file with the Court a “Notice of Compliance,” certifying to the Court that he has fully complied with this Order.

DONE and ORDERED in Chambers, Orlando, Florida on September 15, 2009.

The “exhibit attached thereto” is presumably the judge’s corrected copy of Glasser’s memo. Let’s check it out after the jump.

Apologies for not getting to this story earlier. Sometimes things fall through the cracks around here. (We were offline for much of Thursday and Friday, attending Lavender Law.)

Last week, a federal magistrate judge questioned the propriety of the U.S. Attorney’s Office moving to dismiss a marijuana possession charge against Andrew Sullivan. Yes, that Andrew Sullivan — the noted political pundit, author, and blogger (and proponent of marijuana legalization).

Judge Collings issued his saucy opinion (PDF) on Thursday. Later that day, the story was broken by The Docket. The case has also been covered by Gawker, Wonkette, and the WSJ Law Blog, among other outlets (links collected below).

So we won’t rehash what you’ve probably already read. But feel free to take our reader poll and to discuss the case in the comments.

Judge angered by special treatment for Andrew Sullivan [The Docket / MLW]
United States v. Sullivan [PDF] [U.S. District Court for the District of Massachusetts]
Andrew Sullivan’s Federal Pot Favors [Gawker]
Friendly D.A. Saves Andrew Sullivan From Life Sentence In Gitmo, For Smoking Marijuana [Wonkette]
On Marijuana, a Famous Blogger, and One Skeptical Judge [WSJ Law Blog]

Having your lawyering subjected to the scrutiny of Seventh Circuit Judge Richard Posner is a scary experience. He’s known to be a harsh critic. In a 2001 New Yorker profile, Posner compared his personality to that of his cat: “cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty.”

Assistant U.S. Attorney Juliet Sorensen got a taste of the cruelty in a recent opinion from the Seventh Circuit which dissected her “pattern of improper argumentation… that does no credit to the Justice Department.” The court reversed a conviction for wire fraud and mislabeling food. (A Google search leads us to believe that Sorensen is daughter to legal heavyweight Ted Sorensen, adviser to JFK and a retired Paul Weiss senior partner.)

Juliet Sorensen prosecuted expiration-date entrepreneur Charles Farinella for buying 1.6 million bottles of Henri’s Salad Dressing that were a month away from their “best when purchased by” date. Farinella then slapped on a new date, pushing it back by a year, and resold the dressing to dollar stores for a Tas-tee profit.

“Best when purchased by” is certainly a confusing concept. Posner explores it thoroughly, but admits to not being too hung up on eating foods after those dates run out. In his opinion, he says Sorensen misled the jury by equating the “best by” date with the expiration date, and referring to anything past the “best by” date as “foul, rancid food.”

Posner objected mightily to describing the “shelf stable” Henri’s Dressing in such demeaning terms. Posner then switched metaphors on us in his decision [PDF], saying “the omissions are more interesting than the scanty contents of the government’s threadbare case.” Given all the dressing talk, it seems like the government’s case could have been described as runny, thin, or lacking in flavor… but we digress.

Posner gave Sorensen a thorough dressing-down in his opinion. See Posner’s painful smackdown, after the jump.

Last summer, we wrote about the stinging benchslap that Judge Loretta Preska (S.D.N.Y.; pictured), the highly regarded Manhattan trial judge, administered to Cleary Gottlieb, the highly regarded Manhattan law firm. Judge Preska sanctioned the firm for what she viewed as the improper attempt by one partner to dissuade a witness from attending a deposition. At the time, Cleary announced its intent to appeal.

And appeal it has. Writes Anthony Lin, in the New York Law Journal:

It was a matter of honor that brought Cleary Gottlieb Steen & Hamilton to the 2nd U.S. Circuit Court of Appeals Wednesday morning. Several lawyers from the firm, led by managing partner Mark Walker, were present in the ceremonial courtroom of the Daniel Patrick Moynihan U.S. Courthouse.

A matter of honor. Will there be a duel? Guns all around, says SCOTUS.

Well, maybe not a literal duel. But Cleary’s counsel, the distinguished Roy Reardon of Simpson Thacher, did mix it up with opposing counsel, Kevin Reed of Quinn Emanuel. As did the Second Circuit panel:

The 2nd Circuit judges asked [Reed] whether Kensington had been unreasonable in insisting that the deposition be held on Feb. 4 in Washington when a Paris deposition seemed a reasonable compromise.

“Everything would grind to a halt if lawyers couldn’t accommodate each other,” said Judge Miner.

“Everything would grind to a halt if everyone resorted to self-help as Cleary did here,” Reed replied. He later added: “You don’t go to the witness and say the sort of things [Cleary partner Jean-Pierre] Vignaud said, which can only have the effect of intimidating a witness and shaping his testimony.”

So the alleged attempt by Cleary to dissuade a witness from attending a deposition arose out of a familiar dispute over depo location. Perhaps the parties should have taken a page from Judge James Nowlin’s playbook, and taken it to midfield. Anyone up for a depo on a north Atlantic cruise ship?

Update: As noted over in the Community section, the sanctions against Clery Gottlieb were upheld by the Second Circuit. For more, see the New York Law Journal and the WSJ Law Blog.

Cleary Seeks Vindication in Appeal on Sanctions [New York Law Journal]

Earlier: Benchslap of the Day: Judge Preska Reprimands (Wait for It)… Cleary Gottlieb?

Pity the poor partners of McDermott Will & Emery. Sure, their firm is highly regarded and highly profitable. But when they head off to try cases in far-off places, they often get benchslapped silly.

You may recall the case of bankruptcy partner William Smith, who found himself in the deep-fat fryer after telling a judge she was “a few French Fries short of a Happy Meal.” Although the judge was upset, in the end Smith got a slap on the wrist.

Things didn’t end as happily for Terrence McMahon and Vera Elson, MWE partners based in Silicon Valley. Judge Richard P. Matsch — the tough, well-regarded trial judge who presided over the Oklahoma City bombing case — sanctioned McMahon and Elson for “cavalier and abusive” misconduct and a “what can I get away with?” attitude during trial. From the Denver Post:

A federal judge recently got so infuriated by the conduct of two highly regarded trial attorneys that he overturned a jury’s $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars.

Ouch. So is that coming out of their partnership draws?

Or maybe the firm will find other ways to cut costs. Read more, after the jump.

Update: Please note that this post has been corrected since it was first published. The correction appears after the jump.

Any trial judge with the Gall to benchslap the Supreme Court has a serious set of cojones.

Accordingly, Judge Richard Kopf (D. Neb.) — who sent beer to Professor Doug Berman, as recently noted — is our Judge of the Day. See links collected below.

We agree with Tony Mauro: Judge Kopf’s irreverent “top 10” list of lessons learned from the high court’s sentencing jurisprudence is “a provocative jaw-dropper that may get Kopf scratched off the holiday card list at the Supreme Court.”

Judge Kopf’s “Top Ten” take on SCOTUS sentencing work [Sentencing Law and Policy]
The Top Ten Things I Learned from Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall (PDF) [Sentencing Law and Policy]
Federal Judge’s ‘Top 10’ List Takes On Supreme Court’s Sentencing Decisions [Legal Times]
Richard G. Kopf bio [Federal Judicial Center]

Or a richness of embarrassment. Today we’re going to name not one, but seven Lawyers of the Day.

Our first Lawyer of the Day is Mark Mersel (formerly of Morrison & Foerster, now at Bryan Cave). In case you missed the shout-out in Morning Docket, here’s a bit more, from the WSJ Law Blog:

It’s a litigator’s worst dream — costing your client serious money by missing a filing deadline.

That nightmare was a reality for MoFo, which appears to have cost its client Toshiba America $1 million when it was one-minute late — 1 minute! — in filing a motion for attorneys fees.

For the exciting details — which involve a courier zooming through traffic on a motorcycle, and an unfortunately timed train — read the full post.

The other six Lawyers of the Day are no strangers to these pages. Let’s call them the Qualcomm Six. From the Recorder:

Six attorneys in the Qualcomm Inc. discovery fiasco were sanctioned Monday for “monumental” discovery violations and referred to the State Bar of California for possible discipline.

Day Casebeer Madrid & Batchelder attorneys James Batchelder, Adam Bier, Kevin Leung, Christian Mammen and Lee Patch, and Heller Ehrman’s Stanley Young were sanctioned and harshly criticized by U.S. Magistrate Judge Barbara Major in a 42-page order. The ruling follows a patent infringement trial Qualcomm had brought against Broadcom Corp.

The attorneys “assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate,” Major wrote.

Document production sucks — or, to put it more nicely, it’s a thankless task. It’s time-intensive, mind-numbingly boring, and a general pain in the a**. If you do it right, you’re just doing your job; but if you screw it up, consider yourself screwed. Monumentally.

Six Lawyers in Qualcomm Case Sanctioned for ‘Monumental’ Discovery Violations [The Recorder via Law.com]
Judge rebukes Qualcomm, its attorneys [San Diego Union-Tribune via Blogonaut]
A Litigator’s Nightmare: Late Filing Costs Client $1 Million [WSJ Law Blog]

Today we bring you not one, but two Judges of the Day. We can’t decide who is more deserving of the honor. From the Florida Times-Union:

Twelve days before Christmas, Circuit Judge Aaron Bowden fired his 17-year judicial assistant, who had been on leave since August with cancer. The Jacksonville judge said he feared her prolonged illness would leave him without an assistant at a time when the state had implemented a hiring freeze.

But his decision left Christine Birch, 54, with no medical, life or disability insurance and has created a firestorm at the courthouse.

Chief Circuit Judge Donald Moran responded by calling Bowden “a no-good son of a bitch,” prompting Bowden to respond with a blistering e-mail (PDF) defending his decision and calling Moran’s criticism irresponsible, unprofessional and unseemly.

Other judges’ assistants were also appalled by Birch’s firing. They raised money to pay her rent this month….

Birch declined comment Thursday. But she thanked Moran in a handwritten note last week for putting her back on the courthouse payroll in a rotating judicial assistant’s position. Birch was paid about $3,275 a month in her old job, and the state paid her health insurance premium. Her new rotating position pays $750 less a month and requires her to pay her own premiums.

Our tipster writes:

Best quote from the article: “He said if she died while on the payroll, he would have been without an assistant for two months, ‘not an ideal situation for a judge.’” I guess dying wouldn’t have been an ideal situation for her, either.

To get both sides of the story, check out the email from Judge Bowden in which he defends his actions (and rips Chief Judge Moran a new one). You can access his message — in which he benchslaps Chief Judge Moran for his “effrontery” and his “irresponsible” comments, made “precipitously [and] without authority” — by clicking here (PDF).

P.S. Speaking of cancer, here’s a PSA from ATL, and bad news for Biglaw associates and paralegals: according to cancer researchers, overnight work and sleep deprivation may raise your cancer risk.

Judge fires his assistant, draws criticism [Florida Times-Union]
Email from Judge Aaron Bowden (PDF) [Florida Times-Union]

As the old adage goes, “A lawyer who represents himself has a fool for a client.” And there is some anecdotal evidence in support of that proposition. See, e.g., Elana Glatt / Elana Elbogen (depending upon how you view the merits of her case against her wedding florist).

Here’s another example of what can happen when Biglaw litigators represent themselves. From TaxProf Blog:

The Tax Court today decided Hynes v. Commissioner, T.C. Summ. Op. 2008-1 (1/2/08), a case involving Shawn T. Hynes, a fifth year securities litigation associate in Cleary Gottlieb’s New York City office. The taxable year at issue was 2003, when Hynes was a Penn 3L (he tranferred to Penn after completing his first year at Oregon).

More about the facts of Shawn Hynes’s case, and how he got benchslapped by the Tax Court, after the jump.

(We realize this is old news, but we’re declaring this Remedial Blogging Day at ATL. We have a few other slightly stale stories that we may write up later today, if it continues to be a slow news day.)

Judge Harold Baer (S.D.N.Y.) was once nominated as a hottie of the federal judiciary. Alas, he didn’t win.

But in a competition for hotheadedness rather than hotness, Judge Baer might fare better. From a very interesting article by Anthony Lin in the New York Law Journal:

A Manhattan federal judge has delivered a lengthy manifesto against declining civility in the legal profession in the course of sanctioning law firm Dorsey & Whitney and two of its partners.

Southern District of New York Judge Harold Baer opened his 129-page decision with a discussion of how “naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result.”

He ended it with his observation that “partners are at times made and retained for their rainmaking skills and not for their legal skill, that the number of billable hours is not only the alpha and omega of bonuses but that these hours — or at least the ones that count — often exclude pro bono hours, or that who gets credit for originating a piece of business can throw a firm into turmoil and prompt internecine struggles, or that the bottom line has eclipsed most everything else for which the practice of law stands or stood to the extent that the practice of law is now frequently described as a business rather than a profession.”

Usually when a federal judge tears you a new one, you just grin and bear it. Or maybe go out and buy some Preparation H.

But the lawyer who was the subject of Judge Baer’s ire actually struck back. Read more, after the jump.

While you wait for more bonus announcements to trickle in, check out a benchslap from the nation’s capital. The Washington Examiner reports:

Furious over the city’s “stunning ignorance” of the crisis facing its special-education system, a federal judge has given the District of Columbia one week to come up with a cost-fixing schedule — or face contempt charges.

In an unusually caustic order, U.S. District Judge Paul L. Friedman has ordered State Superintendent Deborah L. Gist and schools Chancellor Michelle Rhee to come up with a policy for setting rates with the thousands of private schools and vendors with which it does business.

Judge Friedman had especially harsh words for the city’s counsel:

“The defendants’ response demonstrates a stunning ignorance of the history of [the] litigation and the operative orders issued by this court,” the judge wrote. “The only plausible explanation is that the attorneys whose names appear on the signature page … must not have read it. …”

Lighten up, Your Honor. Lots of people sign stuff they didn’t draft, or even read. They’re called partners.

(And reading court filings is overrated. Just ask Chief Judge Jacobs.)

Judge sets deadline for special ed plan [Washington Examiner]

Earlier: Chief Judge Dennis Jacobs: Not Running for Student Body President

* Happy Birthday, Mrs. President! Scott Shrake conducts an astrological analysis of Hillary Clinton. [Huffington Post]

* Speaking of witch, is Stephen Colbert “the best-scripted candidate this side of Hillary Clinton”? [Radar Online]

* “‘Terrorism,’ Censored Legal Briefs & The Blogosphere: Awesome Together.” [Fishbowl NY]

* Lawsuit of the Day: Mom of “Let’s Go Crazy” Baby fights back. [ABC News]

* Benchslap of the Day: federal judge tells SEC lawyer, to “sit down” and “shut up.” [WSJ Law Blog]

This short video clip requires little introduction. Res ipsa loquitur. Just watch Judge Marilyn Milian, of The People’s Court, benchslap a cute-but-insolent 2L from the University of Miami:

What is up with all these female Floridian jurists? See also Judge Laurel Myerson Isicoff.

The People’s Court - Judge Milian Flips out on Defendant [YouTube]
The Hon. Marilyn Milian [Wikipedia]

Last week we honored Judge Samuel B. Kent with our prestigious Judge of the Day award, based on his alleged sexual harassment of a court employee. Now the Fifth Circuit Judicial Council has also recognized Judge Kent. From Texas Lawyer:

The Judicial Council of the 5th U.S. Circuit Court of Appeals [on Friday] issued an order reprimanding and admonishing U.S. District Judge Samuel B. Kent of Galveston. The order relates to a complaint of judicial misconduct lodged against the judge on May 21 alleging sexual harassment toward an employee of the federal judicial system.

A former case manager for Kent, Cathy McBroom, confirms she filed a complaint against the judge. She declines further comment. McBroom currently works in the clerk’s office in the Houston Division of the Southern District of Texas.

You can access the order here (PDF). But as a tipster notes, “All the juicy stuff will ‘not be disclosed.’ No fun at all.”

Fear not, judicial gossip aficionados. The Houston Chronicle has more details:

Kent is accused of harassing and inappropriately touching his 49-year-old case manager in his chambers in March….

On the day of the incident, other employees saw McBroom crying and visibly upset, according to interviews. A few weeks later, McBroom transferred to another federal court job in Houston. McBroom was so shaken by the encounter, “She (was) a basket case,” an acquaintance said.

McBroom has retained Houston attorney Rusty Hardin, who would not comment for now on the particulars of the case.

Not good news for Judge Kent. Hardin is one of Houston’s top trial lawyers.

And this is just the tip of the proverbial iceberg. Additional allegations against Judge Kent, after the jump.

When it comes to knowing how to make proper court filings, don’t bother with the FRCP, or even the local rules. Just read ATL.

We tell you everything you need to know. E.g., don’t file an egg with Judge James Muirhead (D.N.H.).

And don’t file gay pornography with Judge Adalberto Jordan (S.D. Fla.). From GamePolitics.com:

That gurgling sound you hear could be Jack Thompson’s legal career swirling down the ‘loo.

The frequent video game critic, already facing professional misconduct charges from the Florida Bar which could see him stripped of his license to practice law, has outraged a U.S. District Court judge by including images of men having sex in a document filed with the court last week.

What was he thinking? And no, the gay porn was not essential to the case (as it might have been in, say, an obscenity prosecution arising out of said porn).

More details — if you want them — after the jump.

Remember Judge Herman Thomas, the Alabama state court judge who allegedly spanked a number of prisoners? Now there’s a theme song for the scandal, entitled “Spank Me.” Check it out here.

The creator and artist, Jolene Roxbury, is a former paralegal who decided several years ago that comedy was her true calling. You can learn more about her over at her website. Nice work, Jolene!

Jolene Roxbury: Certified Verbal Conversationalist

Earlier: Judge of the Day: Herman Thomas

Mobile County Circuit Judge Herman Thomas is ATL’s Judge of the Day. He takes the prize for his innovative approach to sentencing. From the Mobile Press-Register:

Authorities are investigating allegations that now-suspended Mobile County Circuit Judge Herman Thomas periodically removed prisoners from Mobile County Metro Jail and spanked them in a room at the courthouse, according to courthouse sources involved in the inquiry.

Once inside the room, according to the sources, the judge would ask the young men to drop their pants and prepare to be spanked with what they described as a wooden or fraternity-like paddle.

To quote ex-inmate Paris Hilton, “That’s hot.” We agree with these commenters:

“[I]n San Francisco we have lots of people who pay $200 a session for that kind of treatment. Perhaps this judge has a bright future in Bay Area.”

“That’s some kinky place. I think Senator Larry Craig would like to break INTO that prison!”

More details — including a description of the secret six-by-eight room that allegedly served as the judge’s S-and-M dungeon — are available here.

Authorities investigating paddling allegations against Judge Thomas [Mobile Press-Register]
Judge Accused Of Paddling Inmates [WKRG.com]

What’s up with all these federal judges seeking to leave their life-tenured quarters? We understand that the pay’s not great (which is why we urge them to marry rich). But being an Article III judge is still nice work if you can get it.

Despite the power and prestige, two federal judges are moving on — temporarily or permanently. First, from the Daily Business Review:

In a highly unusual move, U.S. District Judge Martin Jenkins [N.D. Cal. (at right)], a life-tenured federal judge in San Francisco, is prepared to give up his seat and has applied for an opening on the California State Court of Appeal bench.

Jenkins, 54, a moderate Democrat and former state trial court judge in Oakland, Calif., was appointed by President Clinton a decade ago. He confirmed rumors that he has submitted an application with Republican Gov. Arnold Schwarzenegger for the vacancy.

We understand the allure of an appellate over a trial court gig. But still, giving up the federal bench for a state court is “highly unusual” — especially since the state court in question isn’t even the California Supreme Court (the move that Judge Morrison England (E.D. Cal.) was contemplating, before he withdrew his name from consideration).

Second, from the Houston Chronicle (via Sophistic Miltonian Serbonian Blog):

U.S. District Judge Sam Kent [S.D. Tex.] will take a four-month leave from his Galveston bench for unspecified reasons, according to an order made public Monday.

No one involved would comment on the order, but students of the federal judiciary said it is unusual.

We smell a story here. A little more about Judge Kent, after the jump.

Judge Loretta K. Preska (S.D.N.Y.) has it all: a lifetime appointment to the federal bench, a rich husband, and killer shoes.

As well as, it appears, no patience for lawyers who play fast and loose with the rules. From the WSJ Law Blog:

Cleary Gottlieb conjures images of Ivy League bookishness and international savoir faire, not bare-knuckled litigation tactics. But last week a federal judge sanctioned the firm and found them to have acted in bad faith. “Civil litigation is not always civil,” began a ruling by Loretta Preska, a federal judge in Manhattan. Here’s the opinion (PDF).

The judge concluded that Cleary tried to dissuade a witness from attending a deposition, in part because of a concern the witness would testify adverse to the firm’s client. Preska ordered Cleary to pay the plaintiff’s attorneys fees and costs ─ an amount to be determined ─ and ruled that “the sanction is imposed as a formal reprimand and should be circulated to all attorneys at Cleary.”

And Cleary partner Jean-Pierre Vignaud was ordered to write “I will not interfere improperly with the discovery process,” five hundred times, on a dry-erase board in a firm conference room.

Cleary Gottlieb — which, by the way, picked fellow white-shoe law firm Simpson Thacher to represent it — said in a statement that it intends to appeal.

Judge Sanctions Cleary: “Civil Litigation Is Not Always Civil” [WSJ Law Blog]
Kensington Intl., Ltd. v. Republic of Congo [WSJ Law Blog (PDF)]