Let's Blame the Lawyers

Jessica McBride expresses concern over a report by Spivak and Bice that Judge Patricia McMahon awarded a bit over $ 87,000 in sanctions against local attorney James Donohoo.

I was made aware of this a few days ago by a public interest law organization with which I am affiliated, but was reluctant to blog it.

Here's why I can't jump to Donohoo's defense. Judges do have the right to award sanctions against lawyers who bring a claim that a reasonable lawyer ought to know is frivolous. If, for example, Joe Smith would ask me to bring a law suit against the guy who ran off with Mrs. Smith for alienation of affection, I should decline. Wisconsin law does not permit that claim. Judges rarely impose sanctions for frivolous claims (in my humble opinion, they should do it much more often), but the authority to do so is there.

In this case, Donohoo brought a suit against a gay rights organization for defaming a minister by claiming that he advocated the murder of gays and lesbians. The preacher had apparently called for the movement opposing more rights for gays and lesbians to "take to the streets" and then had apparently joked about shooting homosexuals. Not exactly the Christian Gospel that I hear proclaimed on Sunday, but that's not the point.

The problem for Donohoo is that truth is a defense in a defamation action and, if our gay-smiting cleric had made himself a public figure by injecting himself into the public debate (which is almost certainly the case), even a misinterpretation of his remarks would have to have been done with malice. In short, the case was a stone loser and, unless the facts have been inaccurately reported, Donohoo should have told his client not to pursue it.

But here's why I can't defend Judge McMahon (who, while quite liberal, is generally fair). I have been around the legal block more times than I care to admit and I know that it is very rare for judges to sanction lawyers even for claims that 90% of us would recognize as clearly frivolous. Imagine that Michael McGee, Sr. had sued someone for defamation because they had characterized his antics of a few years back (remember when he became "the Commander") as calling for the murder of white people at Buck's games (or for the torching of a beauty supply stores owned by Koreans). Would his lawyer have met the same fate?

I can't say that Judge McMahon set the bar too high for Donohoo, but I fear she did set it higher than it is generally set.

While that, in and of itself, may not be the occasion for sympathy, I do worry about the possibility that more exacting scrutiny of lawyers who represent unpopular (even loathsome) clients will send the chilling message that Jessica fears. My guess is that this could have a potentially devastating impact on Donohoo and his family. The distinction between what is frivolous and what is aggressive is not always clear and I'd hate to send a message that the way in which that line is going to be drawn may depend on what judges think of the client.