Federal Circuit Notes Split Re Circumstances in Which an Appeal From a Court's Criticism of an Attorney is Permitted

Per Nisus Corp. v. Perma-Chink Systems, Inc., --- F.3d ----, 2007 WL 2296504 (Fed. Cir. (Tenn.) Aug. 13, 2007) (NOs. 2006-1592, 2007-1142 ):

It is not always easy to determine whether a court's criticism of an attorney should be regarded as a sanction in a collateral proceeding, and there is some disagreement among the courts of appeals as to the circumstances in which an appeal from a court's criticism of an attorney is permitted. The Seventh Circuit permits such appeals only if the court has imposed a formal sanction against the attorney carrying a monetary penalty. See Seymour v. Hug, 485 F.3d 926, 929 (7th Cir.2007) ("[A]n attorney can bring an appeal on her own behalf when challenging a district court decision imposing monetary sanctions on the attorney, but this rule does not allow an appeal of otherwise critical comments by the district court when no monetary sanctions have been imposed."). Other courts permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is itself an appealable sanction. See Butler v. Biocore Med. Techs., Inc., 348 F.3d 1163, 1168-69 (10th Cir.2003); United States v. Talao, 222 F.3d 1133, 1137 (9th Cir.2000); Walker v. City of Mesquite, 129 F.3d 831, 832-33 (5th Cir.1997); Sullivan v. Comm. on Admissions & Grievances, 395 F.2d 954, 956 (D.C.Cir.1967). The First Circuit has adopted a middle position, not requiring a monetary sanction, but finding that "[w]ords alone may suffice if they are expressly identified as a reprimand." In re Williams, 156 F.3d 86, 92 (1st Cir.1998); see Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 542-44 (3d Cir.2007).