Counsel’s Social Media Posts Lead to Monetary Sanctions

28 U.S.C. § 1927 provides that “An attorney or other person admitted to conduct cases in any court of the United States or any territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, and attorneys’ fees reasonably incurred by such conduct.

Image of Polaroid CameraVery recently, in Ha v. Baumgart Café of Livingston, No. 15-5530, 2018 U.S. Dist. LEXIS 70781 (D.N.J. Apr. 28, 2018), a district court in New Jersey relied on Section 1927 to impose a $10,000 sanction against the plaintiffs’ attorney because of her social media posts. The attorney filed a motion beyond the time when she had been ordered by the court to file it and, to explain its untimeliness, she wrote a letter stating that she missed the deadline because of a family emergency that required her to leave the country. Her social media posts, however, proved that her excuse for missing the deadline was not true. After receiving a copy of the explanatory letter, opposing counsel objected to the untimely filed motion because, among other things, the attorney’s public Instagram page contained photographs of her in Miami and New York City during the time she claimed to have been out of the country. Screenshots of the Instagram pages were included with defense counsel’s objection.

Following a hearing at which the court denied defendants’ request to strike the untimely filed motion, the court granted the defendants’ request to seek sanctions against plaintiffs’ counsel, who they claimed “intentionally made material misrepresentations to the Court, and that such conduct clearly constitutes bad faith.”  The court ultimately granted the motion for sanctions, finding that the attorney’s claim of being in Mexico due to a family emergency was false as demonstrated by “the social media exhibits that Defendants provided to the Court.”  The Instagram evidence and other false statements made to the court prompted the Magistrate Judge to impose the monetary sanction because he concluded that her misrepresentations “were in bad faith, multiplied the proceedings in this matter, and therefore warrant the imposition of sanctions under 28 U.S.C. §1927.”

This case has two takeaways:  first, counsel should always be mindful of the ethical rules requiring candor to the court and others and, second, counsel using social media would be well served to better manage their privacy settings.

For any questions relating to this article, please contact Robert B. Nussbaum, Esq., at Saiber, LLC.

Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts. For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.