Mo' Money, Mo’ Problems: Should Appellate Courts Have Non-Party Jurisdiction Over Lawyers’ Appeals From Non-Monetary Sanctions?

David Simon, Chicago-Kent College of Law

Abstract

Over the past two decades, the federal courts of appeals have confronted the jurisdictional question of when a non-party attorney may properly appeal from a judicial reprimand. This Article examines this issue and proposes a novel solution. First, it examines the constitutional and statutory bases for appellate jurisdiction over non-party attorney reprimands. It then explains the approaches taken by the circuit courts, which have responded to this issue in three different ways: the non-party attorney may properly appeal (1) only when monetary sanctions are imposed; (2) only when the reprimand is “explicit and formal”; or (3) when the reprimand is in the “nature of a sanction.” After categorizing, explaining, and analyzing these different approaches, this Article proposes a functionalist, factor-based, theoretical model that courts can use to determine whether appellate jurisdiction is proper when the non-party attorney appeals from a judicial reprimand.