In the otherwise legally unremarkable decision in Waeschle v. Dragovic (11-1878), the Sixth Circuit warned that the failure to cite controlling precedent may result in sanctions. The panel found that Albrecht v. Treon, 617 F.3d 890 (6th Cir. 2010) was “clear circuit precedent that rendered [the appellant’s] argument meritless.” The Court criticized the appellant’s counsel for failing “to deal candidly with the obvious authority that is contrary to appellant’s position” – especially because he had also represented the appellants in Albrecht. The only reason the Court did not issue sanctions was because “at the time this appeal was filed, there was no clear requirement from this court that he do so.”
This last comment was surprising because every attorney should already know the duty to cite controlling precedent, even if the Sixth Circuit is usually reluctant to issue sanctions,. We looked back at Sixth Circuit cases on this issue, and found a warning against “taking frivolous appeals on issues already clearly resolved” by prior precedent. Ueckert v. Commissioner, 721 F. 2d 248 (6th Cir. 1983); Martin v. Commissioner, 756 F. 2d 38 (6th Cir. 1985) (issuing sanction based on Ueckert). Similarly, Lumaj v. Gonzales, 462 F.3d 574, 576 n.1 (6th Cir. 2006), warned that a violation of the “well-defined duty to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel” could warrant the impositions of sanctions. Other cases refer to the possibility of sanctions for “an attorney’s ethical obligation to inform the court of controlling precedent.” Northern Ky. Right to Life Comm. v. Kentucky Registry of Election Fin., 1998 U.S. App. LEXIS 495, 24-25 (6th Cir. Jan. 7, 1998).
Appellant’s counsel in Waeschle was lucky that the panel made the fine distinction between its holding and the circuit’s prior cases. If nothing else, this case is an excellent reminder that failing to grapple with difficult cases does your cause no favors, and may result in sanctions.