Judge William Duffey ()
A lawyer hit with a $1,548 sanction for what a federal judge called a “pattern of disruptive behavior” and “flagrant disregard for the court’s orders” has asked the full Eleventh Circuit Court of Appeals to reconsider a July ruling upholding the penalty.
In a motion filed last week, attorney Sandra Finch and her lawyer, Bruce Harvey, argued the appellate court erred when it ruled Finch waived her Fifth Amendment privilege against self-incrimination during a now-settled insurance dispute.
Judge William Duffey Jr. of Georgia’s Northern District sanctioned Finch for bad faith failure to comply with two orders stemming from accusations she snuck into the office of a deposition witness and photographed a technical manual and framed certificates.
Shortly before trial, Duffey ordered Finch to provide an affidavit explaining how she came into possession of the items. She objected, and the case settled, following a mistrial. During a subsequent show cause hearing on whether she should be held in criminal contempt for not responding to the orders, Finch cited her Fifth Amendment privilege.
Duffey agreed Finch properly raised her Fifth Amendment right in declining to cite her for contempt, but he sanctioned her by awarding fees to the defendant, Allstate Insurance.
Finch appealed, and in July the Court of Appeals not only upheld the sanction but ruled she waived her Fifth Amendment protection by not raising the issue earlier.
Finch, who has relocated to Arizona, said that, in addition to thinking Duffey’s original ruling was unwarranted, she was also concerned the appellate opinion raised troubling implications for an individual’s constitutional protections.
“Judge Duffey agreed that I had a Fifth Amendment privilege in his initial ruling. The Court of Appeals is not saying that I was wrong about that but is instead saying I have waived it,” Finch said.
“To me, it was an absurd ruling that I think could have significant consequences,” said Finch, a former Gwinnett County prosecutor.
As detailed in court filings, the underlying case involved claims by a woman whose home sustained smoke and other damage in a 2011 kitchen fire. Elaine Armstead sued Allstate in 2014 seeking more than $48,000 in damages.
The case was later removed from Fulton County Superior Court to federal court. Before trial, Finch deposed Mark Gould, a fact witness who worked for restoration contractor Steamatic, which cleaned Armstead’s carpets after the fire.
During the deposition, Finch presented Gould with pictures of pages from the “Steamatic Guide to Restoration Services,” which also captured Gould’s letterhead in the background. She also showed Gould photos of professional certificates apparently taken in his office.
Gould became angry and accused Finch of trespassing, demanding to know how she came by the pictures. He left the deposition when she refused to answer.
Finch filed a motion in limine to exclude Gould’s testimony and included an affidavit stating the doors were unlocked and no one was present when she visited Gould’s office to deliver a subpoena. Someone eventually came from the rear of the office and said Gould wasn’t there.
She did not explain where the pictures of the Steamatic manual came from.
Duffey found Finch’s explanations “insufficient and evasive” and gave her five days to provide an affidavit explaining how she got the photographs. She responded on the due date with objections “based on lack of notice, due process, and relevance.”
Duffey gave her another order to provide the affidavit by the end of the day, but she did not respond and told him she was traveling that day. Finch also complained she didn’t “understand what the complaint is or what I’m responding to.”
Duffey issued a show cause order as to why she shouldn’t be held in contempt.
The trial began in July 2016. At the end of the first day, Duffey convened the show cause hearing, and Finch raised the issue of self-incrimination. Duffey held off on issuing sanctions to give her time to retain counsel.
Duffey declared a mistrial on the third day at the request of Allstate’s lawyer, Webb Zschunke Neary & Dikeman partner Marvin Dikeman. The case settled days later confidentially on what Finch said were “very satisfactory terms” for her client.
In October, Duffey ruled that, because the case was settled, he could not levy a civil contempt citation, and said criminal contempt “cannot be imposed for the valid exercise of the Fifth Amendment.”
But he did impose two sanctions orders. One required Finch to author an article for submission to the Georgia Bar Journal and Arizona Attorney discussing “the practical and legal consequences of failing to be candid with the court and failing to comply with court rules and orders.”
She also was ordered to pay Allstate $1,548 in fees “incurred as a result of [Finch's] sanctionable conduct.”
On appeal, in addition to finding she raised the Fifth Amendment too late, an appellate panel including Judges Ed Carnes, Adalberto Jordan and Robin Rosenbaum found Duffey did not abuse his discretion and gave Finch sufficient notice of his intention to levy sanctions and the legal basis for them.
Finch’s petition for an en banc hearing or rehearing argues her “good faith basis for asserting the Fifth Amendment privilege cannot be bad faith” and that Duffey’s handling of the matter “raised numerous due process violations” the appellate court did not address.
Finch said she is less than sanguine about the chances her motion will succeed.
“In order to find waiver, they would have to find Duffey abused his discretion to find that I had validly asserted my privilege,” she said. “That is a very high standard.”