Instagram Posts Support $10,000 Sanctions Against Lawyer

The following is a re-post of an article by Julie Tappendorf from The Municipal Minute, an Ancel Glink local government blog that she edits...

In a recent court ruling, a New Jersey judge imposed a $10,000 sanction on a lawyer after she claimed that she was out of town on a family emergency, but her Instagram account proved otherwise. (Siu Ching Ha v. Baumgart Cafe of Livingston, et al).

Ms. Franco represented a group of plaintiffs in a Fair Labor Standards Act case against four New Jersey cafes. After she missed a deadline to file a motion for class certification on behalf of the plaintiffs, she filed a motion for an extension of time. In her motion, she stated that she was forced to leave the country due to a family emergency in Mexico City, and attached her itinerary.

The defendants' attorneys filed an objection to the motion for an extension, and pointed out that Ms. Franco's Instagram account showed that she was not in Mexico City on the date the motion was due to be filed. Instead, her account showed she was in New York City, and then Miami. The attorneys also pointed out that the itinerary attached to Ms. Franco's motion referred to "Thursday, November 21, 2016", which was not a real date (it's a Monday). In response, Ms. Franco argued that emotional distress over her mother's health caused her to provide an "erroneous itinerary" and she requested that the court allow her to withdraw from the case.

At a court hearing, Ms. Franco admitted that she was not honest with the court. However, she argued that sanctions should not be imposed because her conduct did not amount to "unreasonable and vexatious" conduct. The court disagreed, finding that sanctions were warranted in this case because Ms. Franco deliberately misled the court and the other attorneys in this case. The court expressly acknowledged that her social media account showed she was not in Mexico City as she claimed in her motion for an extension. In short, the court found Ms. Franco's actions in bad faith. Although defendants' counsel had requested $44,283 in attorneys' fees and costs against Ms. Franco, the court found the billings to be excessive, and reduced the sanctions award to the defendants' counsel at $10,000.

This was a pretty expensive lesson for the attorney, and a reminder to everyone that there is no privacy in your social media activities.