November 2012 Vol. 9, No. 3

9.3.10

Attorney Sanctions

Case:

People v. Whitus (2012) 209 Cal.App.4th Supp. 1

Issue:

Was referral to the State Bar in lieu of monetary sanctions warranted of a lawyer appealing trial court sanctions whose oral argument to the appellate department of the Superior Court consisted of “a parade of insults and affronts” including:  (1) referring to the appellate division as the fox watching the hen house; (2) demanding that each member of the appellate panel say on the record whether he had discussed the case with the trial judge; and (3) making disparaging comments about the trial judge?

Holding:

Yes.  On the substance of the appeal, the appellate division of the Superior Court held that the trial court had not abused its discretion in sanctioning the attorney $750 under Code of Civil Procedure section 177.5 for failure to appear at several misdemeanor trial readiness conferences.  (209 Cal.App.4th Supp. at 10.)

After addressing the merits of the appeal, the Court turned to its “grave concern” with the way the attorney had handled oral argument.  The Court quoted only some of the comments the appellate panel found objectionable.  The Court added:  “[W]hat is missing from the discussion is the tone of [the attorney’s] entire argument, something not captured in a written transcript, which can best be described as confrontational, accusatory and disdainful.”  (Id. at 13, emphasis in the original.  In a footnote to this passage, the Court indicated it was making the electronic recording of the hearing part of the record for purposes of further appellate review.  Id. at 13, note 6.)

The Court considered monetary sanctions for counsel’s behavior, but decided that “something more therapeutic needs to be done.  There is no place for this sort of argument in any courtroom, state or federal, trial or appellate.  It demeans the profession, lowers public respect and, if left unaddressed, conveys the impression that it is acceptable behavior, perhaps even effective advocacy.  Most assuredly, it is neither acceptable behavior nor effective advocacy.”  (Id. at 14.)  The Court ordered the clerk to send the opinion to the State Bar for consideration of discipline, expressing “no opinion on what discipline, if any, is to be imposed.”  (Id. at 15.)

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