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Strong admonishment (but no sanctions)


 Today’s appellate ethics lesson comes from J.Banke in the last two pages o the decision here:

We close with an admonition we do not lightly make but are compelled to do so here given the vituperative tenor of appellant’s brief and the nature of the accusations he has leveled against the probate court and opposing counsel.  “[A]n opening brief is not an appropriate vehicle for an attorney to ‘vent his spleen’ . . . .  This is because, once the brief is filed, both the opponent and the state must expend resources in defending against and processing the appeal.  Thus, an unsupported appellate tirade is more than just words on paper; it represents a real cost to the opposing party and to the state.”  (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 p. 33 [awarding sanctions for frivolous arguments 33, fn. omitted; id . at unsupported by the record made in an opening appellate brief].)  Further, “[d]isparaging the trial judge is a tactic that is not taken lightly by a reviewing court.  Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is contemptuous for an attorney to make the unsupported assertion that the judge was ‘act[ing] out of bias toward a party.’ 138 Cal.App.4th 396, 422.)  ”  ( In re S.C. Appellant’s unwarranted attacks on the court and (2006) opposing counsel also reflect poorly on the profession.  Impugning the character of opposing counsel is almost never appropriate, and in this case as we have noted, the charges were wholly unfounded.  (See, e.g., at p. 41 In re S.C. , supra , 138 Cal.App.4th 2 [“unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct”]; 238 Martinez v. Department of Transportation Cal.App.4th 559, 566 [“Attorneys are not to mou (2015) nt a personal attack on the opposing party even by insinuation.”] .) 

It would be deeply disturbing if the lack of professionalism and respect reflected in counsel’s conduct toward the probate court and opposing counsel were common among members of the bar.  Based on our experience, it is not.  For counsel’s benefit, however, we repeat the admonition of the Board of Governors of the State Bar that “attorneys have an obligation to be professional with . . . other parties and counsel, [and] the courts. . . .  This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”  (Cal. Attorney Guidelines of Civility and Professionalism (July 20, 2007) p. 3; id., p. 5, § 4(c), (f) [“An attorney should not disparage the intelligence, integrity, ethics, morals or behavior of the court or other counsel, parties or participants when those characteristics are not at issue. [¶] . . . [¶] . . . An attorney should avoid hostile, demeaning or humiliating words.”].)5  The kind of conduct displayed in appellant’s brief “not only disserves the individual involved, it demeans the profession as a whole and our system of justice.”  (Id., p. 3.)  Rather, counsel must “strive for the highest standards of attorney behavior to elevate and enhance our service to justice.”  (Ibid.)    We strongly admonish appellant’s counsel to conduct himself in a more professional manner when appearing before this or any other court and note that such conduct in a future case may subject him to sanctions much harsher than this warning.


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