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Attorneys Turn Back Their Sanctions Over Client’s Absence

Sept. 20, 2021, 4:17 PM

Two lawyers in a credit-reporting case lacked notice that their client’s failure to appear at mediation could lead to sanctions against them, and there’s no evidence they acted in bad faith, the Eleventh Circuit ruled, vacating a lower court’s order.

Daniel Zemel and Brian Giles represented Deondra Miller in her suit against Midland Credit Management Inc. for violations of the Fair Debt Collection Practices Act. A remote mediation, already past the deadline in a court scheduling order, was set for June 16, 2020, according to the appeals court.

Zemel and Giles appeared for the mediation, but Miller didn’t, despite confirming in advance that she would be there. Zemel told the trial court the next day that he had tried to reach her and had not yet heard back.

The court issued an order asking why it shouldn’t impose sanctions, focusing on Miller’s conduct. Miller responded that her shift had been extended and that she couldn’t contact Zemel and Giles because she lacked access to her phone at work.

The court sanctioned the attorneys as well as their client, ordering them to pay attorneys’ fees and costs associated with attending the mediation, according to the order.

Miller and Midland settled the case, and Zemel and Giles appealed.

The lower court didn’t give the pair fair notice of sanctions against them, the U.S. Court of Appeals for the Eleventh Circuit said Sept. 17 in an unpublished per curiam opinion.

The parties, including Midland, “believed that the district court was considering imposing sanctions against Miller, but not against her counsel,” it said.

Further, the lower court didn’t “make the requisite finding of bad faith,” it said.

Judges Barbara Lagoa, Andrew L. Brasher, and Stanley Marcus served on the panel.

Zemel, who practices in Patterson, N.J., and Giles, of Statman Harris & Eyrich LLC in Cincinnati, Ohio, represented themselves.

Holland & Knight LLP represented Midland.

The case is Miller v. Midland Credit Mgmt., Inc., 2021 BL 352924, 11th Cir., No. 20-13390, 9/17/21.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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