October 2009 | Earn one hour of MCLE Credit in Legal Ethics
By Wendy Patrick Mazzarella
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“Overruled counsel!” the judge declared again. The plaintiff’s attorney rolled her eyes as she sat back down. This judge will let anything in, she thought, as yet another of her relevance objections fell by the wayside. In her opinion, the judge’s refusal to limit the scope of the questioning was causing severe prejudice to her client. There must be something she can do to counter the barrage of what she considered to be horrendously incorrect rulings by the judge. Perhaps a scathing motion for a new trial detailing exactly what she thought of these rulings. But at what cost?
This article will detail the applicable ethical rules governing attorney misconduct and respect for the court. It will discuss the California Rules of Professional Conduct, the California Business and Professions Code and relevant case law.
Grounds for contempt?
There are several provisions that relate to the interaction between lawyers and the judges who are involved in their cases.
CALIFORNIA CODE OF CIVIL PROCEDURE 128, POWERS OF COURTS; CONTEMPT ORDERS
This provision states in pertinent part, that (a) every court shall have the power to do all of the following:
CALIFORNIA CODE OF CIVIL PROCEDURE 1209, ACTS OR OMISSIONS CONSTITUTING; STAY OF SENTENCE PENDING APPEAL
The relevant portions of this section state as follows: (a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:
CALIFORNIA CODE OF CIVIL PROCEDURE 1211, SUMMARY PUNISHMENT; ORDER; AFFIDAVIT OR STATEMENT OF FACTS; COMPLIANCE BY FILING OF FORM
(a) When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he or she be punished as therein prescribed.
When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators or other judicial officers.
PENAL CODE SECTION 166
Another relevant section is Penal Code Section 166, which describes criminal liability for contempt of court. It provides in pertinent part:
(a) Except as provided in subdivisions (b), (c) and (d), every person guilty of any contempt of court, of any of the following kinds, is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in the immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority.
(2) Behavior as specified in paragraph (1) committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law.
(3) Any breach of the peace, noise or other disturbance directly tending to interrupt the proceedings of any court.
(7) The publication of a false or grossly inaccurate report of the proceedings of any court.
How far can you go?
While various legal and ethical rules set the standards for proper interaction between lawyers and judges, many lawyers attempt to test the boundaries, resulting in a wealth of available case law. One case which provides some guidance regarding the type of allegations that are improper and sanctionable as direct contempt is In re Koven (2005) 35 Cal.Rptr.3d 917. In Koven, 15-year attorney Debra Koven crossed over the line in several allegation-filled documents she filed with the court. Koven filed petitions for rehearing regarding the court’s decision in a legal and medical malpractice action in which she represented plaintiff Paul Bashkin. (Id. at 918-19.) In her petitions, she repeatedly impugned the integrity of the Second District Court of Appeal Division 6 and accused its members of “deliberate judicial dishonesty.” (Id. at 918.) Although she subsequently apologized, the court did not excuse Koven’s conduct because “her unsupported accusations of judicial misconduct are patently outrageous.” (Id. at 919.) In addition, Koven displayed a “pattern of abuse” by making similar accusations against her opposing counsel, their expert witnesses and the trial judge. (Id.) The court did, however, decline to impose jail time in light of her apology, imposing a fine instead. (Id.) (The court also referred the case to the State Bar for investigation. (Id.))
The court defined direct contempt as contempt “committed in the immediate view and presence of the court, or of the judge at chambers …” (Id. at 923 [quoting Code Civ. Proc. 1211(a)].) “[I]t is the settled law of this state that an attorney commits a direct contempt when he impugns the integrity of the court by statements made in open court either orally or in writing. [Citations.] Insolence to the judge in the form of insulting words or conduct in court has traditionally been recognized in the common law as constituting grounds for contempt. [Citation.]” (Id. [quoting In re Buckley (1973) 10 Cal.3d 237, 248].)
But what about the lawyer who holds it together in court, only to unload in his or her moving papers or to colleagues out in the hallway? The Koven court explained that a direct contempt is committed when a lawyer attacks a court’s integrity through statements made in a document that is filed with the court. (Id.) “The California Supreme Court has long held that the inclusion of a contemptuous statement in a document filed in a court is a contempt committed in the immediate presence of the court and thus constitutes a direct contempt. [Citations.]” (Id. at 923-24 [quoting In re White (2004) 121 Cal.App.4th 1453].)
Regarding the court’s obligations to recognized contempt, the court quoted precedent for the proposition that “the judge of a court is well within his rights in protecting his own reputation from groundless attacks upon his judicial integrity and it is his bounded duty to protect the integrity of his court. [Citation.] However willing he may be to forego the private injury, the obligation is upon him by his oath to maintain the respect due to the court over which he presides. [Citation.]” (Id. at 924 [quoting In re Ciraolo (1969) 70 Cal.2d 389].) Contempt arising from attacks on a court’s integrity are regarded as criminal proceedings and are punishable by five days in jail and/or a fine of up to $1,000. (Id. [citing Code of Civ. Proc. 1218(a)].)
While the conclusion in this case may not be a surprise to many lawyers, the specific definitions of contempt and the use of the contempt power is rarely discussed, and often misunderstood.
CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTION 6068 defines the duties of an attorney. Subsection (b) lists one of the duties of an attorney as respect to the court.
Many cases have analyzed the duty of respect to the court in Bus. and Prof. Code Section 6068(b). Attorneys must respectfully follow court rulings, whether they believe they are correct or incorrect. (People v. Piage (2003) 112 Cal.App.4th 1359.) Even if an attorney is incensed at an adverse ruling, he must not willfully disobey it and must maintain an attitude of respect to the court. (People v. Chong (1999) 76 Cal.App. 4th 232). An attorney is an officer of the court, so when he or she violates his or her obligations, a judge may protect the court’s integrity and reprimand the attorney. (Id. at 243.) Because trials are often fast-paced, a judge may reprimand an attorney in front of the jury because it is often not feasible to excuse the jury first. (Id. at 244.)
The Chong court, as many other courts, cited Bus. and Prof. Code Section 6068 for the proposition that “an attorney must not willfully disobey a court’s order and must maintain a respectful attitude toward the court.” (Id. at 243.) Judges are entitled to receive courteous treatment from lawyers, in the same fashion as lawyers are entitled to receive the same from judges. (In re Grossman (1972) 24 Cal.App.3d 624.) Even the most zealous of attorneys is an officer of the court and has “a paramount obligation to the due and orderly administration of justice.” (Chula v. Superior Court In and For Orange County (1952) 109 Cal. App.2d 24, 39.)
Lest the duties under Bus. and Prof. Code Section 6068 be taken lightly, Cal. Bus. and Prof. Code Section 6103 explains that a violation of a lawyer’s duties as an attorney may constitute cause for suspension or disbarment.
CALIFORNIA RULES OF PROFESSIONAL CONDUCT
There is no rule specifically dealing with showing respect to the court found in the California Rules of Professional Conduct. The closest is Rule 5-200, Trial Conduct, which mainly focuses on the duty of candor. Its provisions are as follows:
In presenting a matter to a court, a member:
(A) Shall employ … such means only as are consistent with truth;
(B) Shall not seek to mislead the judge or jury by an artifice or false statement of fact or law;
(C) Shall not intentionally misquote to a court the language of a book, statute or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional.
When the California rules are silent on a particular issue, we look to the ABA Model Rules for guidance. While not binding in California, they may provide some direction on ethical issues.
MODEL RULE OF PROFESSIONAL CONDUCT RULE 8.2, JUDICIAL AND LEGAL OFFICIALS
Respect for the court is also covered in the ABA Model Rules. Rule 8.2 states:
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
Rule 8.2 Comment  states that “[t]o maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.”
RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
This rule states that a lawyer shall not (d) engage in conduct intended to disrupt a tribunal.
Rule 3.5 Comment  states that a lawyer’s function is to provide “evidence and argument” so that a case may be legally decided. The Comment goes on to state that “[r]efraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.”
Respect for the court is also covered in the ABA Standards for Criminal Justice. Standard 3-5.2 (prosecution standards) and 4-7.1 (defense standards) state that as officers of the court, lawyers should “support the authority of the court and the dignity of the trial courtroom by strict adherence to codes of professionalism and by manifesting a professional attitude toward the judge …”
The Commentary for both of these sections cites the United States Supreme Court in explaining that lawyers are permitted to argue their respective positions, but in the face of an adverse ruling by the court, a lawyer may not resist the ruling or insult the court, his or her only remedy is to preserve the issue for appeal. (Citing Sacher v. United States (1952) 343 U.S. 1, 9.)
In summary, while lawyers can and should vigorously represent their clients in court, they are not permitted to do so at the expense of disrespecting the court. Knowledge of the applicable ethical and legal rules governing the proper relationships between lawyers and judges will permit savvy lawyers to represent their client effectively, as well as ethically.
• The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.
• Wendy Patrick Mazzarella is a San Diego County deputy district attorney in the Sex Crimes and Stalking Division, immediate past chair of the San Diego County Bar Association Legal Ethics Committee and a member of the California State Bar Committee on Professional Responsibility and Conduct.
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