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58. May the trial judge sanction the associate?
A chemist from State A brought suit against a biologist from State B in federal court. The chemist and biologist engaged in litigation for three years. When the time came for the final pretrial conference, the biologist's lead attorney was ill and unable to attend. Instead of attempting to postpone the conference, the lead attorney asked a third-year associate from his firm who had also worked on the case to attend. The lead attorney's only instruction to the associate was to «be careful» about which commitments the associate made at the conference. At the conference, the judge asked the associate to stipulate certain facts relevant to the case, agree that specified matters be referred to a magistrate judge, and agree to time limits on the presentation of evidence. The associate squirmed and said that he did not think he had sufficient knowledge of the case or authority to make those commitments.
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B is correct. FRCP 16(c)(1) requires attorneys attending pre-trial conferences to be prepared and authorized to make stipulations and admissions regarding issues reasonably anticipated for discussion at the conference. FRCP 16(f)(1)(B) allows for the imposition of sanctions when attorneys come «substantially unprepared» to the conference or act in bad faith.
Here, if the trial judge believes the associate appeared at the pre-trial conference substantially unprepared or acted in bad faith, the judge may, on its own initiative, impose sanctions.
A is incorrect. The court may impose sanctions under FRCP 16, but it is incorrect that the judge may also dismiss the proceeding in whole or in part. Such an action would have the effect of penalizing the chemist too, when it was the fault of the defendant-biologist's attorneys who failed to act properly under FRCP 16. The primary objective of remedying this scenario would be to penalize the biologist's attorneys, not the parties themselves, especially not the plaintiff who had no responsibility for the actions of the biologist's counsel.
C is incorrect. Again, the court may, in fact, impose sanctions. It is incorrect to assert that the judge may only place the associate in contempt of court for failing to obey the court's order. In fact, it would be improper for the court to hold the associate in contempt of court because there was no order in place to have disobeyed.
D is incorrect. It is incorrect to claim that the court may not impose sanctions. Furthermore, it is also incorrect that all the judge is permitted to do is re-schedule the pre-trial conference to accommodate the lead attorney's attendance. Although the court could re-schedule the conference, the judge also has the option of imposing sanctions, as explained above, if there is reason to believe the associate who did attend came substantially unprepared or acted in bad faith.