Appellate Court Stresses Civility, Reminding Us It Is Not Mutually Exclusive With Zealous Advocacy.
This case is destined to be cited and likely quoted often both in the areas of family law fee sanctions under Family Code section 271 and attorney civility.
In re Marriage of Davenport, Case No. A126181 (1st Dist., Div. 2 May 4, 2011) (certified for publication) involved a situation where a long-time couple with assets divorced, with wife’s representation being taken over by a well-known firm that assigned the matter to a young, inexperienced attorney. Interactions in the case during the next two years resulted in a 35-page register of actions and 19 volumes of court files.
Wife eventually sought section 271 fees of $600,861 and costs of $332,933, totaling $933,794. Husband (who claimed he was the victim of young attorney’s aggression) countered with his own 271 motion and a further sanctions motion.
After a 5-day hearing on the motions, wife’s request was denied in entirety and husband was granted 271 sanctions of $100,000 and another $304,387 in defending the actual fee motions, an award made by an experienced jurist in a 31-page statement of decision.
Wife, for whatever reason, appealed. Bad idea, producing an appellate decision that is poignant in nature.
Emily Post, arbiter of civility, in a moment of quiet abandon chez elle. Miguel Covarrubias, artist.
Justice Richman, writing for a 3-0 panel, found the award against wife was no abuse of discretion, condemning in the practice these activities: (1) filing declarations laced with arguments (In re Marriage of Heggie, 99 Cal.App.4th 28, 30 n. 3 (2002)); (2) citing inapplicable authorities in memorandum of points and authorities; (3) filing of excessive objections (amounting to over 40 pages); (4) sending rude and hostile correspondence to opposing counsel; (5) making demeaning comments to opposing counsel; and (6) imprudently using the young lawyer to handle a complex case involving substantial assets.
Among other things, the appellate court rejected the notion that the Civil Code section 47 litigation privilege applied to 271 sanctions proceedings (torts, yes; 271 proceedings, no).
Here is a quote worth remembering: “We close this discussion with a reminder to counsel--all counsel, regardless of practice, regardless of age--that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth;’ nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperaton. They are not mutually exclusive.”
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