By Lance J. Rogers
An appellate lawyer who sought a deadline extension under false pretenses, filed a recycled brief full of irrelevant allegations, and then sent another lawyer to appear at his sanction hearing must pay a $10,000 fine to the court, the California Court of Appeal, Fourth District, ruled Nov. 29 (Kim v. Westmoore Partners Inc., Cal. Ct. App. 4th Dist., No. G044216, 11/29/11).
In an opinion by Justice William Bedsworth, the court found that the misconduct was aggravated by the lawyer's lack of remorse and defiance when the court called him out on his dishonesty.
The court used its opinion to lament the increasing level of unprofessionalism and incivility it has seen, and warned that it intends to take action against offending attorneys when necessary.
Gil Kim sued two businessmen and their companies for failing to repay some loans. When the defendants didn't file a timely response, Kim requested and obtained a default judgment for $30 million.
On appeal, the court took a close look at Kim's complaint, concluded that it didn't hold water, and reversed. The filing not only lacked a cognizable cause of action, the court said, it also failed to set forth any clear demand for damages, “let alone one which would support the enormous judgment he obtained from the trial court.”
Even if Kim's complaint was sufficient to support a default judgment, he still would face reversal because his appellate lawyer failed to “prove-up” his damages, Bedsworth said.
Kim's prove-up evidence “consisted of nothing more than his own conclusory demand for $5 million dollars from each defendant” plus a sheaf of documents that “were not only unintelligible, but also unsupported by any foundation suggesting how, when, or by whom they were created,” the court stated.
This matter presents several lessons, the court said, for trial courts as well as plaintiffs' attorneys. Plaintiffs' lawyers must not falsely assume that a default is a golden opportunity to obtain a big judgment with little effort when, in fact, they owe it to the client and the court to examine the complaint to see whether it supports the specific judgment sought, the court warned.
Here, it said, Kim's lawyer failed to do that and simply asked the trial court to enter defaults on the complaint as initially alleged. Unfortunately for Kim, the factual allegations of that complaint didn't support any judgment in his favor, it said.
Furthermore, the court made clear in its opinion that it was particularly exasperated by the behavior of Kim's appellate counsel, Timothy J. Donahue, whose conduct it characterized as “inappropriate in nearly every respect.”
The defective prove-up was just one deficiency, the court said, and this was compounded by conduct during the appeal that was disdainful and “prevaricative.”
Donahue, the court said, asked for an extension of time to file his brief, citing the need to research and address the many “complex issues raised” by his opponent. The result, however, belied this claim, the court said, in that the brief Donahue filed “proved to be an almost verbatim duplicate of another brief he filed with this court,” and even featured erroneous references to the previous client.
The brief also included a “boilerplate” accusation of misconduct against the opposing lawyer, the court said, and a boilerplate request for sanctions, that didn't connect to anything in the present case. This suggests that Donahue “didn't even pause to consider whether they were appropriate points to make,” the court said, but instead copied “bellicose rhetoric” from the prior brief “without any reference to anything that actually happened here.”
Lawyers should seek sanctions only when there have been serious violations of the standards of practice, not as a bullying tactic, Bedsworth stated. “A request for sanctions can never be so lightly considered as to be copied word for word from another brief—much less copied in reliance on facts from another case that do not obtain in the present one,” he wrote.
When called out on this misbehavior, the court continued, Donahue was anything but remorseful. He defended his actions by insisting that he had the right to modify his own work product, Bedsworth said.
The court added that the lawyer also made the “truculent and dismissive” assertion that the sanctions notice the court sent to him must have been intended instead for opposing counsel.
Finally, the court was not happy that Donahue sent another attorney to the sanctions hearing who had no idea that sanctions were being considered against Donahue, thus forcing the court to issue a second order to get him to appear personally.
The court said it found little precedent that dealt with this level of misbehavior. “How much do you sanction an attorney who lies to the court, seeks unwarranted sanctions, bullies opposing counsel, shows no remorse, and effectively vows to continue such tactics by endorsing his conduct when challenged on it?” Bedsworth asked.
Bedsworth concluded that a $10,000 fine payable to the court was consistent with the most closely analogous case law dealing with frivolous appeals, and was severe enough to discourage future misbehavior. It also stated that it was forwarding the opinion to the California State Bar.
In his opinion, Bedsworth raised the flag for maintaining standards in the legal profession, while conceding that sometimes it seems to be a quixotic effort. He stated:
Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It's time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions.
Donahue, Orange, Cal., represented himself along with John Park Yasuda, Orange. The defendants were represented by Aaron K. McClellan, James F. Monagle, and Tanis J. Leuthold of Murphy, Pearson, Bradley & Feeney, San Francisco.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8p4qca .
Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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