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The 7th Circuit held recently that verbal bashing of a lawyer in a published order cannot be appealed unless it comes with monetary sanctions, breaking with four circuits that allow such appeals and one that permits it only if the critique is specifically labeled a “reprimand.” The 7th Circuit ruling came in the case of Leslie V. Matlaw, a Chicago attorney accused of “being less than honest” during a settlement proceeding before U.S. Magistrate Judge Jeffrey Cole in a 2005 race discrimination case. She’s currently considering her next step in the fight over a $40,000 settlement. On May 3, the panel said it would break with other circuits that recognize a lawyer’s right to challenge written reprimands or sanctions in judicial opinions. Instead, the panel said it had no jurisdiction to consider Matlaw’s complaints unless a monetary sanction was imposed. Seymour v. Hug, 2007 WL 1287513. No hearing? “I was accused of fraud,” said Matlaw of the Matlaw Law Firm. “I have discipline proceedings pending against me. It has had enormous effects on me; only in the 7th Circuit, I can’t do anything about it,” she said. “Cole made a series of procedural errors that were egregious. You can’t summarily say someone is guilty of fraud. That requires a hearing.” Matlaw’s client, Donna Seymour, negotiated to buy a house in a Chicago suburb, but accused realtors of selling out from under her when they learned she was black. The negotiated deal originally included an allotment for Seymour’s children to alleviate any possible future claims. Seymour later changed her mind, but Matlaw failed to tell the defendants, allowing the settlement to proceed without the children’s payment, according to the judge. It was that failure that prompted Cole’s harsh critique of Matlaw. Both sides later agreed that a share of defense fees would come out of Matlaw’s fee because of the additional settlement litigation. But shortly after the settlement order was filed, Matlaw filed the appeal challenging Cole’s written criticisms and asking him to rescind the final fee arrangement. Mark D. Howard, attorney for the realtors Roger and Carol Hug, alleges that Cole adopted the defense settlement interpretation and Matlaw agreed, including defense entitlement to fees, then had a change of heart and appealed Cole’s critique. Howard noted that five days after the appellate ruling, Cole said it would be “bad faith” if Matlaw made any attempt to revive the litigation. The 7th Circuit is the only circuit court that considers an order only damaging to a lawyer’s professional reputation as never appealable, although it does leave open the possibility of relief through a writ of mandamus. The 5th and D.C. circuits allow lawyers to appeal orders finding misconduct, without the need for additional monetary sanction. In addition, the 9th Circuit allows appeals of orders that go beyond “routine judicial commentary” to find willful ethical violation. Only the 1st Circuit limits attorney appeals to those cases in which the challenged order is expressly identified as a reprimand. Earlier this year, the 3d Circuit ruled that whenever a district court imposes sanctions on an attorney, the lawyer must be given an opportunity to be heard. It joined the 5th, D.C. and 9th circuits.

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