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.

Could A Sanction Issued Against an Attorney Foretell a Trend of Impatience with Incivility?

A $750 sanction issued against an attorney would not normally present a notable development on the legal ethics front. But when the appellate division of the San Luis Obispo County Superior Court affirmed a trial court’s order awarding that sanction against a criminal defense attorney for multiple failures to appear, it also took the step of ordering that its opinion be sent to the California State Bar for consideration of discipline and certified it for publication. (People v. Whitus (2012) 209 Cal.App.4th Supp.1.) In view of a case like Whitus, coupled with the drastic budget cuts that have devastated all of California’s Superior Courts, one cannot help but wonder whether the ever-more money strapped judiciary will be less likely to dedicate its limited resources to counsel who push the limits of civility.

In Whitus, the attorney appealed the sanctions order that was imposed under Code of Civil Procedure section 177.5 claiming the trial court abused its discretion and was biased, yet he failed to lodge the exhibits necessary in order for the appeal to prevail. (Id. at pp. 7-11.)  Significantly, the appellate division did not dismiss the appeal, but instead addressed the appeal on the merits and the attorney’s oral advocacy, “[c]onsisting of repeated tirades and impertinence, and with a tone wholly condescending and accusatory . . .” The attorney’s conduct was characterized as a “serious and significant departure” from acceptable practice “in any court of law.”  As such, it demanded “an appropriate response” from the court. (Id at p. 4.)

The attorney was quoted on the record as having stated to the trial court, “Your honor, it appears to me that you really think that you’re doing the right thing, and I feel sorry for you for your shortsightedness.” The appellate division was referred to as “the fox [watching the hen house.” At one hearing the attorney demanded that the prosecutor be removed from the counsel table — these being just a few examples of a barrage of tirades before the trial court and during oral argument on the appeal. (Id. at p. 12.)

Under Business and Professions Code section 6068(b), it is the duty of an attorney to maintain the respect due to the courts of justice and judicial officers. The San Diego County Bar Association’s Attorney Code of Conduct underscores that directive. Yet one may occasionally witness behavior akin to that demonstrated in Whitus, however measured, and without consequence — though one cannot blame a court for not wanting to directly address incivility for fear of becoming personally embroiled in the case.

But perhaps Whitus-like behavior will be even less tolerated, especially since the San Diego Superior Court continues to experience the severe consequences of the $14 million cut to its budget by Sacramento. It has been reported that the cuts “will fundamentally alter the way in which the court does business.”  (San Diego Superior Court New Release “San Diego Superior Court Faces Historic Budget Cuts Services Reduced, Hundreds May Be Laid Off, Courtrooms Shuttered” June 20, 2012.)  Employees are being cut or forced into early retirement, business office hours are being cut, seven courtrooms are being closed, probate court has been consolidated downtown, and dependency court in North County has closed, all of which may be just the beginning of more drastic cuts. In short, courts are being stretched thin and to their limits — so, too may, be a court’s patience for incivility. As the court in Whitus observed:

It is a privilege to appear as counsel before the court representing a
client in the pursuit of justice.  Counsel are considered officers of the
court. The handshake at the end of the trial is not the only time when
professionalism and civility are expected.  It is demanded of lawyers,
at all times and at all stages of a case, no matter what the stakes involved.
[Citations omitted.] Especially in this day and age of distrust and cynicism,
counsel’s respect for the institution and administration of justice is critical.

(Whitus, supra, 209 Cal.App.4th Supp. 1 at pp. 13-14.)

-- Bryn Kirvin

**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.**