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.


When Zealous Advocacy Crosses the Line, 
It May be the End of Your Client’s Case

“An attorney is an officer of the court. He or she must respect and follow court orders whether they are right or wrong.” 
(Osborne v. Todd Farm Service (2nd App. Dist., Div. 6, May 2, 2016)

As attorneys, we all know (or should know) that compliance with court orders is not discretionary. We may disagree with the order, but comply with them we must. Consider a court order in limine prohibiting the introduction of, or reference to certain evidence at trial. Violating that order could result in an adverse instruction to the jury, a mistrial, raise appellate issues, and so on. But could violating an in limine Order result in an abrupt dismissal of your case? Are there ethical implications with such a result? A recent case from the Second Appellate District examines the power of our courts to impose terminating sanctions in the face of flagrant misconduct and the rare invocation of the rule requiring attorneys maintain the respect due to our courts.

On May 2, 2016, the Court in Osborne v. Todd Farm Service affirmed the lower court’s mid-trial dismissal of the Plaintiff’s case for repeat violations of an in limine ruling.  The Plaintiff, Osborne, was injured while baling hay and brought suit essentially alleging the bale of hay was defective. The Plaintiff had failed to timely or properly designate experts on the issue (another noteworthy aspect of the case), and at trial, the defense moved the court for orders in limine precluding the Plaintiff from offering lay-opinion testimony regarding the bale of hay (and for reasons not really pertinent here, from testifying about the specific supplier of the hay); all of which were granted.  

Osborne’s counsel disregarded the court’s in limine rulings almost immediately during opening statement, prompting the Judge to instruct the jury to disregard references to that evidence and an admonition to the attorney for violating the court’s order. “Within a few minutes of this exchange” counsel did it again. Another instruction, another admonition.  Defense counsel eventually moved for mistrial that was denied. During the direct examination of the Plaintiff, counsel again violated—repeatedly—the in limine rulings eventually prompting the Judge to stop the proceedings and excuse the jury. The Court noted that counsel’s line of questioning constituted “flagrant, fragrant misconduct…in violation of the Court’s repeated rulings.”  The trial judge then ordered the case dismissed with prejudice against all defendants, “as a sanction against both [plaintiff’s counsel and his client].”

The Appellate Court affirmed the dismissal. While the Appellate Court’s opinion involves a nuanced analysis of the nature of the trial court’s in limine rulings as well as the applicable standard of review in such a circumstance, the heart of the opinion is the Court’s acknowledgment that “California courts possess the inherent power to issue a terminating sanction for ‘pervasive misconduct’”.  The Court stated the question was “not whether the trial court should have imposed a lesser sanction; rather…whether the trial court abused its discretion by imposing the sanction it chose.” Concluding the trial court did not abuse its discretion, the Court of Appeal explained the inherent authority to control the proceedings before them “includes the authority to impose a terminating sanction where a party willfully violates the court’s orders.” The terminating sanction, according to the Court, “was an appropriate response to appellant’s repeated flagrant misconduct….”

California B&P Code 6068(b), cited by the Court in the first sentence of its opinion, requires attorneys “to maintain the respect due to the courts of justice and judicial officers.” This includes abiding by the Court’s orders, whether you agree with them or not. The consequences for ignoring this “time honored rule[]” may just be the termination of your client’s case. 

-- Patrick J. 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.**