An Indiana personal injury lawyer has been sanctioned $1,000 by a court of appeals for using the defendant-retailer’s photos to support his own client’s slip and fall case without having sufficient factual basis to do so.
The Appeals Court’s Decision
The 7th Circuit Court of Appeals, based in Chicago, Illinois, sanctioned the lawyer in a January 3rd order. The appeals court criticized the attorney’s weak argument supporting the claim that photos taken by defendant-retailer Walmart were from the day his client suffered an injury.
The appeals court suspected the evidence when it noticed the date stamp had been removed on one of two photos submitted by the lawyer in an appendix on appeal of the case. Both photos appeared to show the condition of the Walmart store’s floor. One photo was dated 11 days after the plaintiff allegedly slipped on a hanger and fell down. The plaintiff’s attorney claimed the photos showed debris on the floor the same day his client slipped and fell, and claimed that Walmart had actual or constructive notice of the dangerous condition in the store that caused the accident.
The appeals court issued an Order for Cause demanding the attorney explain why he should not be sanctioned for misrepresentation. The attorney responded that the date stamp on the photo disappeared when the photographs were scanned and reproduced by his office. The attorney further argued that the date was on Walmart’s mounting sheet, not a time stamp on the photograph itself, and defendant-retailer never argued the photographs were taken on a date later than when the accident occured. The attorney further maintained he had a good faith basis for claiming they were taken on the day of the accident because (1) the client said the photos reflected the condition of the site when the slip-and-fall happened and (2) Walmart turned over the photos in response to a discovery request.
Unpersuaded, the appeals court noted the attorney should have accepted responsibility for the missing date on the photograph instead of shifting the blame. The appeals court also found the attorney failed to perform due diligence regarding the evidence provided to the court. The appeals court further found the attorney did not have a sufficient basis to represent that the photo was taken the day of his client’s slip-and-fall accident.
Factors Considered in Imposing Sanctions
The American Bar Association’s (“ABA”) has Model Rules for Lawyer Disciplinary Enforcement, which are followed by many states across the nation. There are several factors to be considered when imposing sanctions after it has been determined that misconduct has occured on the part of a lawyer. These include:
- Whether the attorney has violated a duty owed to: (a) the client, (b) the public, (c) the legal system, or (d) the legal profession;
- Whether the attorney acted knowingly, negligently or intentionally;
- The amount of the potential or actual injury caused by the attorney’s misconduct; and
- The existence of any mitigating or aggravating factors.
No practicing attorney wants to face sanctions imposed by a court. Be sure to follow the Rules of Professional Responsibility at all times so that you are not facing the same fate as the Indiana lawyer.
