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Attorneys and judges: Can't we all just get along?

Part I of II

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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 one of her relevance objections fell by the wayside. In her opinion, the judge's refusal to limit the scope of the testimony was causing severe prejudice to her client. There must be something she could do to counter the barrage of what she considered to be horrendously incorrect rulings by the judge. But what?

Legal and ethical rules set the standards for proper interaction between lawyers and judges. Recent case law provides some guidance regarding the type of allegations that are improper and sanctionable as direct contempt. In Koven (2005) 35 Cal.Rptr.3d 917, 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 subsequently she 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, its 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.), and also referred the case to the state bar for investigation.

In her moving papers, Koven alleged the justices were partial and biased, neglected to review controlling case law, conspired with the defendants, misrepresented evidence and concealed conflicts of interest with the defendants, among other things. (Id. at 920-23.) Koven's allegations included the statements that "this court's rulings against (Bashkin) in this appeal, each of which had no basis whatsoever in fact or law, were merely a reaffirmation that the 'fix' was proceeding full bore," and "the court's finding is a complete red herring. This court purposely concocted a flimsy excuse not to rule on the merits of this issue, because it knew that to do so would have required it to reverse..." (Id. at 921-22.) Regarding the court's intentions, Koven stated, "When this court chose to engage in a betrayal of the fundamental values and principles of the law in order to defeat the interests of a 'Bashkin,' it undertook an 'ends-justifies-the-means' approach. The 'ends' was to eliminate (Bashkin) from the judicial system, whatever the cost -- the cost being this court's integrity and continuing viability as a depository of the public trust.'" (Id. at 922-23 [italics in original].) At the subsequent order to show cause, Koven's lawyer presented in mitigation Koven's apology, a 15-year unblemished legal record, and declarations regarding her professionalism. (Id. at 923.)

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)].) "(It) 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).)

Please tune in next month for a continuation of the Koven case analysis and further discussion of the court's power of contempt.

Patrick Mazzarella is a deputy district attorney in the Special Operations Division of the San Diego District Attorney's Office. She can be contacted at wendy.patrick@sddt.com. Comments may be published as Letters to the Editor. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

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