5.1.6

Monetary Sanctions

Case:

Sheller v. Superior Court (2008) 158 Cal.App.4th 1697

Issue:

Was the trial court authorized to sanction an out-of-state attorney appearing pro hac vice for legal ethics violations by ordering him to pay his opponent’s substantial attorney’s fees and by formally reprimanding him?

Holding:

No.  The Court of Appeal observed that trial courts have a variety of tools to sanction attorneys who appear before them for misconduct or in the interests of justice.   California trial court’s inherent powers also include authority to revoke an attorney’s pro hac vice status for conduct sufficient to disqualify a California attorney.
In a matter of first impression, the Court of Appeal held that trial courts, however, may not punish attorneys appearing before them pro hac vice in ways not authorized by statute or beyond the punishment authorized for California attorneys.  The trial court’s order that the pro hac vice attorney pay his opponent’s attorney’s fees “had no statutory basis, and the trial court could not have imposed a similar order on a California attorney.”  Similarly, the trial court’s formal reprimand of the Texas attorney could not have been imposed on a California attorney.  The Court of Appeal ruled that the sanctions could not be upheld as lesser included sanctions to the revocation of the Texas attorney’s pro hac vice status.  “[A]lthough a trial court has the power to disqualify a California attorney, it does not have the power to impose the apparently lesser sanctions of attorney’s fees and a formal reprimand.  There is simply no reason to conclude that, even though a trial court has the inherent power to revoke an out-of-state attorney’s pro hac vice status, it somehow has the power to impose every conceivable lesser sanction on that attorney especially when the trial court does not possess the jurisdiction to impose those sanctions on a California attorney.”  (Id. at 1716-1717.)  An attorney appearing pro hac vice submits to the jurisdiction of California courts to impose discipline under California law for attorney misconduct to the same extent as members of the California bar.  (Cal. Rule of Court 9.40(f).) .  “The attorney appearing pro hac vice does not submit to the disciplinary jurisdiction of the California courts to a greater extent than California attorneys.”  (Id. at 1717, emphasis in the original.)

Note:

The trial court found the attorney’s advertising flyer contained at least one statement that was untrue in violation of Business and Professions Code section 6157.2(d).  The attorney mailed an advertising flyer to 350 of the defendant’s policyholders, seeking additional class representatives and informing them, “If accepted, you are paid for your time in an amount set by the judge.”  The court found this statement false.  The trial court also found ethical violations based on the attorney’s misrepresentation in open court concerning his retainer agreement.  The case was remanded for further proceedings, including whether the attorney’s conduct warranted the sanction of revocation of his pro hac vice status.