Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Appellate Sanctions:  An Unreasonable Failure to Follow the Rules May be Sanctioned and Disciplined.

On November 19, 2011 the third Division of the Fourth Appellate District in Kim v. Westmoore Partners, Inc., 2011 Cal.App. LEXIS, in a published opinion, on its own motion imposed $10,000 in sanctions on attorney Timothy J. Donahue.  It further directed the clerk to forward a copy of the opinion to the State Bar pursuant to Business and Professions Code section 6086.7.  That section requires a court to notify the State Bar of “[t]he imposition of any judicial sanctions against an attorney, except sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).”  The court even provided the State Bar with Mr. Donahue’s bar number!

What did Mr. Donahue do to garner the wrath of the Fourth District – with consequent damage to his reputation; probable disciplinary action with its attendant expense and jeopardy of his ability to practice law; and a not inconsequential monetary exaction?  [It is true the decision is not final.  However, the chance of a rehearing or the California Supreme Court granting review is miniscule.]

Mr. Donahue did not follow the court of appeal’s rules.  But he did so with a vengeance.

It seems Mr. Donahue’s client was successful in obtaining a $30,000,000 default judgment.  Defendants appealed.

The court of appeal in analyzing the merits of the appeal highlighted the not too well written complaint - it failed to state a basis for relief.  Second, the damages prove up was noteworthy for its shallowness – its conclusory assertions of entitlement to money.

The default judgment was set aside, but in the process one can discern a gathering storm about to turn into a deluge on Mr. Donahue.

And now for Mr. Donahue’s performance on appeal.  It was not just Mr. Donahue’s failure to follow the rules on appeal – it was also his honesty, ethics, professionalism and courtesy toward opposing counsel and disrespect for the court that are recounted.

Specifically: Mr. Donahue sought “an extension of time to file his brief under false” pretenses, and then filed a brief which was not just boilerplate, but a “virtual copy of a brief for another case – including boilerplate accusations of misconduct against appellants’ counsel and a boilerplate request for sanctions. . . ” against appellants’ counsel “based on a purportedly ‘frivolous appeal’” and that “will not be countenanced.”  [The court noted that the so-called specifics of “frivolousness” asserted by Mr. Donahue was one clerical error.]

The court on its own motion ordered Mr. Donahue to show cause why he should not be sanctioned.  Appellants did not request sanctions.

What did Mr. Donahue do?  First he responded in writing that the order must have been issued in error.  He was quickly disabused of that notion.  On the day of the hearing Mr. Donahue sent another attorney who did not know the purpose of the hearing.  The written response, followed by Mr. Donahue’s sending the second attorney, were in the court’s words “truculent and dismissive.”  The court had to issue a second order to get Mr. Donahue to actually appear.

In sum, not every rule violation is sanctionable.  It is those violations that involve prevarication – lies – and that are otherwise unreasonable that may be sanctioned.  Mr. Donahue, as an officer of the court, may not lie to the court.  Seeking an extension of time to write a brief because the issues are “complex” requiring him to “research cases” and then filing a brief from another matter is a lie. 

In conclusion, the court, of course, was concerned about its rules being followed.  Equally important, it expects attorneys to be candid with the court and civil with opposing counsel.  Rambo tactics are not acceptable.  Complete candor and appropriate remorse are mandatory.

– Charles Berwanger

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**