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.


ATTORNEYS’ DUTY OF CANDOR TO COURTS CANNOT BE UNDERSTATED

Every attorney owes an ethical duty of candor to the court. (Bus. & Prof. Code, § 6068, subd. (d).)  Given the current burdens on the court system and its staff to vet innumerable filings, practitioners should not surprised when sanctions are leveled for breaching these exacting duties.    In California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, Gary Rand represented clients who were injured in automobile accidents. California Back Specialists Medical Group (CBSMG) provided medical treatment to the clients pursuant to liens on their personal injury actions and thereafter sued Rand to collect on the liens.  Attorney Gary Rand filed an Anti-SLAPP motion to strike the lawsuit which the trial court denied, deemed it frivolous, and awarded attorney fees to CBSMG. (Id. at pp. 1034–1036.)  Rand appealed.  With respect to Rand's claim that CBSMG's complaint alleged acts made in connection with an issue under consideration by a judicial body, the appellate panel disagreed, concluding “CBSMG's complaint is based on the underlying controversy between private parties about the validity and satisfaction of the liens. These issues were never under consideration in any court or official proceedings until CBSMG filed the current action.” (Id. at p. 1037.)

More recently, Mr. Rand again appealed the denial of his SLAPP motion in Personal Court Reporters, Inc. v. Rand (2012) 205 Cal. App. 4th 182, 191, where the plaintiff alleged that Rand “failed to pay for court reporting services rendered.  [The court] determined that defendants' attempt to transform a collections case into an action that chills their constitutional rights is meritless.” (Id. at p. 191.)  The appellate court noted that “Rand's attorney on appeal was Timothy Rand-Lewis, the same attorney who brought the current appeal.”   (Id. at p.192.)  In awarding $22,000 in sanctions, the appellate court stated “Where, as here, a party appeals and merely repeats an argument that was soundly rejected by another appellate panel, we have little difficulty concluding that the party lacked good faith in pursuing the appeal. Defendants' conduct is especially egregious because they failed to bring the prior case to our attention and did not address its holding after plaintiff cited it in its brief.”  (Id. at p. 193.)  The appellate court ordered that “Pursuant to Business and Professions Code section 6086.7, subdivision (a)(3), upon issuance of the remittitur, the clerk is directed to notify the State Bar of the sanctions imposed by this opinion and order. Pursuant to Business and Professions Code section 6086.7, subdivision (b), the clerk is directed to notify defendants and their counsel that this matter has been referred to the State Bar.”   (Id. at p. 194.)  Practitioners obviously need to recognize that where one appellate panel or trial judge finds an argument frivolous, it will not go unnoticed by other jurists.   Indeed, given the current financial constraints, courts may depend significantly on attorneys’ duty of candor to the court.  

- Andrew Servais

**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.**