Judge Liles Burke appears eager to sanction LGBTQ civil rights lawyers

A Friday order that some lawyers turn over a document prepared in the early days of the Alabama judge-shopping "inquiry" strongly suggests Burke has made up his mind.

A Friday order suggests that U.S. District Judge Liles Burke is disturbingly eager and ready to sanction at least some of the 11 attorneys involved in the LGBTQ civil rights litigation at the center of the Alabama judge-shopping “inquiry” that I’ve reported on extensively at Law Dork.

The two-year investigation into the lawyers has raised as many, if not more, questions about the behavior of the federal judges in Alabama than it has about the lawyers involved — questions about the judges’ actions, the lack of due process they have given the lawyers, and the factual conclusions reached — but it is the lawyers who now face an apparent likelihood of sanctions if something doesn’t change.

There is, quite simply, no other way to read the June 14 order from Burke — the Trump appointee who prompted the investigation carried out by three other federal judges in Alabama — as he is closing in on hearings scheduled for the end of the month in which he has asked 11 attorneys why they should not face sanctions as a result of the investigation.

On top of everything else, the order — filed after close of business Friday, naturally — is a disingenuous attack on the lawyers that short-circuits those “show cause” hearings, with Burke drawing conclusions on Friday that make the show cause hearings more like show trials.

In Friday’s order, Burke never addressed some of the key issues raised by the lawyers in response to the accusations, including the fact that under Rule 41, plaintiffs have an unconditional right to dismiss a lawsuit before defendants take certain actions not at issue here. He also never addressed the lawyers’ continued questions about the lack of due process or lack of enunciated legal standards — let alone adherence to them — by the three-judge panel in reaching its October 2023 conclusions of misconduct.

Far from addressing those concerns, Burke instead credited the panel’s conclusions as fact — highlighting that the three-Republican-appointee panel reached its conclusions “unanimously” (or was “unanimous”) a dozen times in his order — without so much as acknowledging the filings by the lawyers disputing those findings or questioning the panel’s process.

Burke then used the panel’s conclusions to justify an order that demands he be allowed to review a document that some of the lawyers prepared for the lawyer they hired to represent them in the earliest stage of the investigation back in May 2022.

This is so, Burke wrote, because the panel’s conclusions justify an initial finding from him that the document could contain evidence that the crime-fraud exception to attorney-client privilege applies to the document.

This “prima facie showing” by Burke is based on the panel’s finding that one lawyer “deliberately misled” the panel — which Burke has turned into a “perjury” accusation — that I discussed previously and that the lawyer disputes, as well as a broader, limitless “fraud on the court” assertion about the lawyers’ purposes for preparing the document. Both, essentially, only work because Burke is crediting the panel’s findings.

In other words, because a questionable panel — operating with virtually no safeguards for the lawyers because the panel insisted its actions were “not adversarial” — reached biased conclusions that just happen to protect the Alabama courts and its judges, Burke is now using that to independently order the lawyers to turn over a document to him that they prepared for their own lawyer in that investigation.

It’s an offensive, frightening order that should raise concern to all.

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The Friday order

The 51-page order, as I highlighted in a note Friday, is over the so-called “Q&A document” that was prepared by one of the legal teams back in 2022 when this whole saga was at its beginning.

After Burke raised questions of whether judge-shopping was involved in the decisions by two sets of lawyers to dismiss their clients’ cases challenging the state’s then-new ban on gender-affirming medical care for minors, the chief judges of each of the three districts in Alabama — to whom Burke had sent his order raising this concern — appointed a three-judge panel to investigate.

The panel ordered all 39 lawyers involved to come to Alabama for a hearing about this question on May 20, 2022. The lawyers in the second-filed case challenging the ban — the Walker case lawyers — hired counsel based out of Alabama to represent them at that hearing. In helping to prepare the lawyer for the hearing, they prepared a Q&A document about what had happened.

In Friday’s order, Burke told four of those lawyers — James Esseks, LaTisha Faulks, Carl Charles, and Kathleen Hartnett — they have to turn over that document by 5 p.m. Tuesday. Burke insisted this is fine because he is going to review the document in camera to decide whether the crime-fraud exception applies, which would then allow him to break attorney-client privilege and consider the document in the sanctions show cause hearings. If that sounds weird, it’s because it is. In camera review generally means that a judge reviews a document before deciding whether the opposing party can see it. Here, of course, there is no opposing party. So, Burke is ordering to see a document so that he can decide whether he can use the document.

In an earlier order about the document, Burke threatened the lawyers with jail if they didn’t comply. That threat was not explicitly laid out in Friday’s order, but, given the earlier order, it would be implied as a consequence if they do not turn it over and he, ultimately, holds them in contempt.

Notably, Friday’s filing was an order, not a show cause order as Burke’s earlier order regarding the Q&A document was, so, Burke is pulling back still a bit here, at least procedurally. Also, as of Sunday afternoon, there were no filings responding to Burke’s latest order — either in front of Burke or at the U.S. Court of Appeals for the Eleventh Circuit, where the attorneys briefly sought and then withdrew a mandamus petition after Burke’s earlier show cause order regarding the Q&A document.

Nonetheless, there is a lot in Friday’s order. I’d like to highlight three of its most troubling aspects.

This thing is one of two things — or both

In the Friday order, Burke can’t decide whether this matter is darn near unprecedented and justifies all of the extreme treatment Alabama’s federal judges have given it or if it’s just another ruling in another case and the lawyers are being irrational or worse to even ask for the protections they’re seeking.

Instead, he chose both — it’s unprecedented when he wants to justify the actions taken over the past two-plus years to impugn some of the nation’s leading civil rights lawyers and it’s rote when he wants to deny them protections against the abuse they have faced over that time.

At one point, for example, this is how Burke responded to the lawyers’ argument that allowing this sort of review in a case where attorney misconduct is claimed would allow similar orders in virtually any case where the attorneys accused of misconduct retained counsel:

But, 10 pages later, when the lawyers are seeking special protections — the appointment of an independent special master to review the document if he did order it to be turned over — because of the nature of this case, Burke insisted the lawyers are being irrational.

The disappearing “two week” trial

Additionally, the absurdist, no-win nature of this “inquiry” is made clear in Burke’s order.

At the center of this inquiry is U.S. District Judge Annemarie Axon’s decision to transfer the first-filed challenge to the ban, Ladinsky, to Burke near the end of the business day on April 15, 2022. This transfer was irregular, unexplained, and outside of the random assignment process. It also followed U.S. District Judge Emily Marks’s order earlier in the day transferring Walker, which had been filed in the Middle District of Alabama, to the Northern District of Alabama. Despite Marks having written that she was doing so because of Ladinsky, which was in front of Axon at that time, Walker was randomly assigned to Burke when it was transferred.

In short, by time Axon transferred Ladinsky to Burke at the end of that day, he had gone from having neither challenge to both challenges in less than eight hours. Lawyers familiar with the judges of the Northern District, moreover, considered Burke to be the worst draw for the challengers.

It was at that point — going into a holiday weekend and in light of a status conference Burke had immediately called for the next business day, Monday, in Walker — that the lawyers decided, essentially, to cut their losses in light of all of this confusing action, with an understanding and intention to file a new challenge in short order.

For the past two years, Alabama’s judges have asserted that the reason for Axon’s transfer was that she was just four days into a lengthy criminal trial. Here is how the “Final Report of Inquiry” from the three-judge panel described this:

Although the panel acknowledged the lawyers had no knowledge of the criminal trial, the lawyers’ questioning of the basis for the transfer has since been the cause of much consternation. There has very much been a “how dare you!” feel to it.

It turned out, though, that the “which at the time of trial was anticipated to last for more than two weeks” language was both very carefully worded and arguably deceptive. As I reported last week, two of the lawyers have recently pointed to documents from that case showing that Axon’s criminal trial had already gone to the jury earlier in the day on April 15 before she transferred Ladinsky to Burke at 4:41 p.m. that day.

With that exposed, rather than address it, Burke just eliminated that key aspect of the claimed basis for Axon’s transfer to the stated reason for Axon’s transfer. Here’s how he described it on Friday:

If this makes clear how little the judges here care about the claimed facts that they are using to justify this investigation, one final point gives it all away.

Nothing matters — if judges say it

This whole 51-page order, again, is about a short Q&A document prepared in less than 10 days back in 2022.

Additionally, much of the key “evidence” cited by the panel and Burke is in the forms of a few comments by junior lawyers made in the early days of the investigation — all of which have been explained in the 11 lawyers’ responses that I’ve previously discussed.

And yet, when it comes to whether the lawyers’ request is reasonable for a special master to be appointed from outside of the federal judges in Alabama to review the Q&A document if Burke wanted to order it reviewed, Burke quickly dismissed statements made by the three-judge panel during the hearings.

“Two comments” by judges don’t matter for the purposes of this investigation, Burke tells us without any further explanation — an investigation that has justified itself based on a few comments from junior lawyers made in a stressful situation in the midst of a years-long effort to fight back against unprecedented anti-transgender attacks across the nation.

Law Dork will continue to provide coverage of this investigation and U.S. District Judge Liles Burke’s handling of it.