When (Over-) Zealous Advocacy Crosses the Line
LACBA Update, June 2013
By Andrew M. Vogel, Deputy Attorney General, Office of the Attorney General of the State of California, and member of LACBA’s Professional Responsibility and Ethics Committee. The views this article expresses are solely the author’s and do not necessarily reflect the views of the Attorney General’s office or its clients, or of the Professional Responsibility and Ethics Committee.
“[Z]ealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” So stated the California Court of Appeal in In re Marriage of Davenport.1
Most lawyers are familiar with local rules2 and State Bar guidelines3 that instruct counsel to act civilly toward the courts, opposing counsel, and litigation adversaries (or they should be). Sometimes lawyers use these rules as ammunition, invoking them when accusing opposing counsel of misconduct, whether real or perceived. Some lawyers might view adherence to such guidelines as an obstacle to upholding their duty of zealous advocacy. But several recent court decisions reject the idea that zealous advocacy and civility cannot coexist. These decisions demonstrate that when a lawyer sacrifices civility for (overly) aggressive advocacy, tangible consequences for the lawyer and his or her client may follow.
For example, Scott C. Moody, Inc. v. Staar Surgical Co.4 involved a sanctions award under C.C.P. Section 177.5 against counsel who violated a court order and attempted to excuse his conduct as advocacy. Section 177.5 provides, in relevant part:
A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification...For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both.
Section 177.5 contains an “advocacy exception,” which provides that “This [sanctions] power shall not apply to advocacy of counsel before the court.”
In Scott C. Moody, a lawyer violated the trial judge’s order not to inquire into a particular area during cross-examination. The trial judge ordered the lawyer to pay $1,500 in sanctions under Section 177.5. The court of appeal affirmed the sanctions award. The court recognized that while a lawyer owes a client a duty of zealous advocacy, the lawyer “has, ‘as an officer of the court, a paramount obligation to the due and orderly administration of justice...’ [Citations omitted.]”5 The court rejected the lawyer’s invocation of the advocacy exception to Section 177.5. The court explained that the lawyer’s offending cross-examination question did not qualify as “advocacy,” i.e., “‘the act of pleading, arguing, supporting or recommending a particular position or idea.’”6 Rather, the court viewed the question as “a calculated decision to violate the court’s order.”7 This violation resulted in consequences not limited just to affirmance of the sanctions award. The court also ordered a copy of its opinion sent to the State Bar.8
Unduly aggressive and uncivil advocacy had similar consequences for a criminal defense lawyer in People v. Whitus.9 The lawyer failed to appear at several successive trial readiness conferences after the trial judge ordered him to do so. The trial judge ordered the lawyer to pay $750 in sanctions under Section 177.5. The Superior Court Appellate Division affirmed. But the lawyer’s conduct on appeal really got the Appellate Division’s attention. During oral argument, the lawyer disparaged the trial and Appellate Division judges as well as the prosecutor.
In affirming sanctions, the Appellate Division reinforced that zealous advocacy and civility are not mutually exclusive:
The civility requirements in no way reduce the practice of law to an antiseptic exercise....[S]ome of the most passionate and effective advocates for their clients also hold their adversaries, the Court, and its judicial officers in the highest regard. Passion can easily coexist with respect, dignity, and civility.10
As in Scott C. Moody, the consequences for the lawyer of violating this principle included not just affirmance of the sanctions award (and an unflattering published opinion) but also the Appellate Division’s order that a copy of its opinion be sent to the State Bar.11
In re Marriage of Davenport reached a similar result—and a more expensive one for the offending lawyer and client. Family Code Section 271 authorizes the court to
base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction…
Section 271 has been interpreted as “authoriz[ing] attorney’s fees and costs as a penalty for obstreperous conduct.”12
In Davenport, a lawyer whom the court characterized as “young and inexperienced” represented the petitioning wife in a marital dissolution action. The trial court ordered the wife to pay more than $400,000 in combined sanctions and attorney's fees to the husband based on her lawyer’s litigation misconduct. The court of appeal affirmed, finding this award warranted by the lawyer’s “uncivil, rude, aggressive and unprofessional conduct” that resulted in “unnecessary delays and unnecessary attorney fees and costs.”13 This conduct included filing an excessive number of discovery motions, violating meet and confer obligations, and repeatedly directing “abusive, rude, hostile, and/or disrespectful” correspondence to opposing counsel.14
Unable to persuade the court to reverse this monetary award, the lawyer sought to spare the wife personal liability for the award. The lawyer contended that the wife “should not have been punished for [his] communications, which remained within the bounds of free speech and zealous advocacy.”15 However, the court rejected this argument and explained that Section 271 “‘explicitly makes parties liable for the obstreperous actions of their counsel...’ [Citations omitted.]”16
These three decisions—arising from diverse underlying proceedings—involve conduct rules and guidelines that lawyers do or should know well. Those rules are nothing new. But these decisions instruct that courts view these guidelines seriously. A lawyer who violates these guidelines should not expect a judge to entertain as an excuse that the lawyer was merely advocating for a client. Civility and advocacy go hand in hand. Pretending otherwise may have tangible—and unpleasant—consequences for a lawyer and client.
1 In re Marriage of Davenport, 194 Cal. App. 4th 1507, 1537 (2011).
2 See, e.g., L.A. County Local Rules, Appendix 3.A, “Guidelines for Civility in Litigation,” Section l(2) (“Counsel should always deal with parties, counsel, witnesses, jurors or prospective jurors, court personnel and the judge with courtesy and civility”); see also San Diego County Rules of Court, Division 1—General and Administrative (stating that lawyers, among other things, “must remember that conflicts with opposing counsel are professional and not personal; vigorous advocacy is not inconsistent with professional courtesy”).
3 California Attorney Guidelines of Civility and Professionalism, State Bar of California (adopted 2007; part of State Bar’s “Civility Toolbox,” located at http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=mPBEL3nGaFs%3d&tabid=455 including, among others, §3 (“An attorney should not compromise the guidelines of civility and professionalism to achieve an advantage”); §8 (“An attorney should not make ad hominem attacks on opposing counsel” and “Unless at issue or relevant in a particular proceeding, an attorney should avoid degrading the intelligence, ethics, morals, integrity, or personal behavior of others.”)).
4 Scott C. Moody, Inc. v. Staar Surgical Co., 195 Cal. App. 4th 1043 (2011).
5 Id. at 1048.
6 Id. at 1049 (citing People v. Ward, 173 Cal. App. 4th 1518, 1529 (2009)).
7 Id. at 1049.
8 Id. at 1050.
9 People v. Whitus, 209 Cal. App. 4th Supp. 1 (2012).
10 Id. at 14 (citing In re Marriage of Davenport, 194 Cal. App. 4th 1507, 1536-37 (2011)).
11 Id. at 15.
12 In re Marriage of Davenport, 194 Cal. App. 4th at 1524 (citing Robert J. v. Catherine D., 171 Cal. App. 4th 1500, 1520 (2009), and In re Marriage of Freeman, 132 Cal. App. 4th 1, 6 (2005)).
13 Id. at 1522.
14 Id. at 1514, 1534.
15 Id. at 1535 n. 17.
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at firstname.lastname@example.org.