Ethics in Brief

Ethics in Brief 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.

And the Hits Keep Coming

Any litigator is necessarily aware of and has felt the impact of our State’s Court funding crisis. And a crisis it is.  Over a billion dollars in state-wide budgetary cuts to our Judicial Branch has had devastating consequences; including no fewer than 50 court closures, several thousands of full-time position layoffs, massively increased case loads for our judges who now have fewer, if any staff to assist, significant delays with trials and motion dates, and a general decline in the public’s access to justice.

For those lucky, and presumably few, who have not felt the impact of the budgetary cuts, you will soon. The cuts to court funding are only getting worse in the coming year. During a recent presentation given by the Presiding Judge of the San Diego Superior Court, the Honorable Judge David J. Danielsen, he noted that on top of the San Diego court system’s already significant budget slashing—which has included, among many things, extensive lay-offs coupled with a hiring freeze, court closures, and the elimination of court reporters in civil cases—we are facing yet another 6 million dollars in cuts over this next year, and a total of 9 million dollars over the next two years.

Are there ethical implications of these budget cuts which could affect your practice? Yes! First, and perhaps the most “familiar” impact to most of us in San Diego, is the delay in having motions heard.  “Early” motions, such as motions for a change of venue or demurrers are often set anywhere from 5 to 10 months out, maybe longer. Indeed, Judge Danielsen noted that Demurrers are a significant part of the clogged system.  Moreover, many of these early motions effectively result in a stay of the litigation while the motion is pending.   This delay inevitably raises concerns: Should you even file a meritorious demurrer when it will almost certainly hold up the proceedings for the foreseeable future? Are you obligated to file such a motion, even if the delay might be cause more harm than a successful result? Do you have to inform your client, as part of your ethical responsibilities, of the impact the budget cuts are having, or will have on your ability to prosecute or defend your case?

We are all required to vigorously represent our clients’ interests and that may indeed include the need for law and motion in any given case, but the impact of the budgetary cuts is changing the way we perform our duties and forces new considerations. California Rule of Professional Conduct 3-500, for example, requires attorneys to keep their clients reasonably informed of any “significant developments” with respect to the litigation. Thus, while filing a demurrer may seem appropriate, a potential delay of several months or more may indeed impact that decision and be considered a “significant development”.  So too, perhaps, is the fact your trial will likely be set for a date years away from the date of filing.

There is also the unfortunate risk of parties using the delay as a tactic to stall the proceedings or to leverage their position in the case. California Business and Professions Code section 6068 requires attorneys to maintain the respect of the courts;  to maintain those actions, proceedings, or defenses only as appear to be legal or just; and prohibits “the continuance of an action or proceeding from any corrupt motive of passion or interest” (Cal. B&P Code 6068(b),(c), and (g), respectively.)  Similarly, California Rule of Professional Conduct 3-200 prohibits attorneys from asserting any position for the purpose of harassing the other party, or a position that is not warranted by law.

The court system’s budgetary crisis is having a tangible impact on our profession and will remain a reality for the foreseeable future. Attorneys are encouraged to give consideration to the ethical issues which may arise as a result, as well as how we can do our part to assist while we continue to weather the storm.

– Patrick Kearns

**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.**


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