Those words come from Judge Lindsay’s recent Order in EsNtion Records v. TM Studios, where Judge Lindsay took up the issue of whether to sanction EsNtion’s attorney for failure to notify the Court that her client had declared bankruptcy.
The facts are as follows: On August 31, 2010, Judge Lindsay awarded $376,000 in attorney’s fees against EsNtion and in favor of TM Studios after TM Studios prevailed in a copyright lawsuit brought by EsNtion. On September 2, 2010, the Court’s law clerk received a phone call from TM Studios’ counsel informing the Court that EsNtion had declared bankruptcy in April 2010. EsNtion’s counsel had not notified the Court of this fact, and the Court ordered her to show cause why she should not be sanctioned for failing to do so.
EsNtion’s counsel filed her response to the Court’s show cause order, and stated that she had not been in contact with her client since February 2010, and that she had only learned of the bankruptcy “recently.” Judge Lindsay, to put it mildly, was not pleased, writing (after he stayed the enforcement of his attorney’s fee award):
The court now considers [EsNtion’s counsel’s] response to its order. [EsNtion’s counsel] states repeatedly that she learned of her client’s bankruptcy “recently,” but she fails to provide specific information about when she learned this information. If she only learned of the bankruptcy when she received the court’s order, she should have been forthcoming with the court. The court would not sanction her if she had no information about the bankruptcy, but her response, which lacks candor and specificity, creates the impression that she knew about the bankruptcy but did not inform the court. . . .
Put frankly, [EsNtion’s] counsel “dodged a bullet” when the court decided not to personally sanction her [in connection with the Court’s earlier opinion]. Her attitude in her response, however, has not improved. Rather than stepping up to the plate and admitting responsibility, she refers to extraneous matters, such as her status as a solo practitioner and the length of time that [TM Studios’] Motion for Attorney’s Fees was pending. The court has grown weary of her excuses. [EsNtion’s] counsel, however, will not be sanctioned because she states that she did not know of her client’s bankruptcy until only “recently,” and the court has no means of proving otherwise. . . .
The court will not hear or entertain any more excuses from [EsNtion’s counsel]. The court has been quite patient, but it does not have the patience of Job; it has heard enough! [EsNtion’s counsel] does not seem to recognize her predicament, but the following aphorism should put the matter in perspective: “When you find yourself in a hole, stop digging.” Further excuses or argument from [EsNtion’s counsel] regarding the substantive issue of attorney’s fees, or her conduct relating thereto, may lead the court to sua sponte reconsider its earlier decision with respect to her personal liability for attorney’s fees in this case, or to impose sanctions as it deems appropriate for violation of its order.
All around, not a good situation to be in.
TM Studios is represented in the case by Bruce Morris, Danya Blair, and Sarah Davis, all of Beirne Maynard & Parsons LLP.