An attorney who went too far

For my next post I had planned to explore the types of errors one might encounter on appeal.  Unfortunately, life intervenes.  This recently published case stopped me cold.  In Styles v. Mumbert (July 15, 2008, H029767) __ Cal.App.4th ___, respondent Styles obtained a default judgment against appellant Mumbert, who is a licensed California bail agent.  While Mumbert was represented by attorney Anthony Pagkas, it seems that Pagkas failed to respond to discovery, and even admitted on the record that he did not have enough time to devote to the case.  The trial court awarded terminating sanctions against Mumbert for this and possibly other transgressions.  Mumbert hired new counsel, who was unable to vacate the order for terminating sanctions, and then filed his appeal.

Mumbert also filed a malpractice action against Pagkas, who cross-complained for his fees for services rendered.  That case is still pending in the trial court.

Are you still with me?  Then Pagkas had a brilliant idea.  He purchased the default judgment - allegedly caused by his malpractice - for a "valuable, but undisclosed, consideration.  He then attempted to substitute himself into the appeal as the respondent (instead of Styles), while being represented by another lawyer from his firm, which had previously represented Mumbert in the underlying action.  Pagkas argued he should be allowed to step in as the respondent in this appeal so he can offset a possible default judgment against a future malpractice award.

This request did not sit well with Mumbert, who cited numerous ethical violations.  Mumbert also requested sanctions for expenses incurred in opposing this motion.

The Court of Appeal agreed with Mumbert, finding Pagkas's attempt to substitute into appeal violated his fiduciary duties to Mumbert as well as violating the Rules of Professional Conduct and the Business & Professions Code.  The Court, playing by the rule that personal insults against an attorneys should not be tolerated, found that Pagkas's conduct, done for his own personal gain, "is without precedent."  (Slip Opn., p. 6.)

The Court summed it up, again in a very professional and polite language, "Pagkas's actions make a mockery of the Rules of Professional Conduct.  We cannot conceive of, and the case law is devoid of, a scenario which could do more violence to the attorney-client relationship and the public trust in the legal system, than what Pagkas and his firm have done and seeks to do.  Despite the well founded opposition to the motion, citing to the relevant Rules of Professional Conduct and supporting case law, Pagkas and his attorney continue to urge that we grant the motion without cogent argument or cite to relevant supporting authority."  (Slip Opn., pp. 6-7.)  The court assessed $5,260 in sanctions.  It also set an order to show cause as to why Styles's default should not be entered inasmuch as she faild to file a respondent's brief.

Do not attempt to perform this trick at home, your office, or anywhere else!  Now the rest of us will have to spend some time trying to convince our clients and the public that being an attorney is truly a noble profession.

How the Court looks at errors

No one is perfect.  During the course of a day, we make plenty of mistakes, little ones and sometimes big ones.  A trial is no different.  Attorneys will make mistakes, from objecting on the wrong grounds to asking an obviously ambiguous question.  A clerk may make a mistake labeling an exhibit.  A bailiff could make a mistake in dealing with the jurors.  Your clients may also make mistakes by saying the wrong thing or making grimaces that clearly signal their opinions.  And the trial court may make mistakes as it rules on evidence and controls the courtroom.

At the appellate level, the reviewing court must analyze what type of mistake it is dealing with and determine whether that mistake is harmless or prejudicial. In trying to categorize a mistake, the court will consider (1) who made the mistake, and (2) the effect of the mistake on the proceedings.  As you will note, some mistakes will work in your favor while others can hurt your case.

A client once pointed out to me that the legal profession must be the most pessimistic of jobs - we see potential problems everywhere!  Isn't that we are paid to do?  He opined that the legal profession was often the cause of things not getting done, i.e., people were afraid of making mistakes.  His observations certainly had merit.  Looking for problems (or more accurately, errors) is even more refined at the appellate level.

In future posts, we will take a look at the types of mistakes you may encounter on appeal:  judicial, clerical, harmless, prejudicial or reversible, "reversible error per se," and invited error.

The gift that keeps giving

Good news for plaintiff's attorneys who specialize in medical malpractice!  The Petition for Review in Garibay v. Hemmat (2008) 161 Cal.App.4th 735 was denied by the California Supreme Court.  That means you can continue to cite Garibay in opposition to defense motions for summary judgment.  (See my post of May 17, 2008 for more details.)  Everyone should be familiar with this case and don't forget that you should comply with its requirements as well when you file your opposing expert declarations.

By the way, an article that I wrote, which was published in Plaintiff magazine, was cited in the Petition for Review.  You can also check out that article by searching the archives at www.plaintiffmagazine.com.

What's on your computer?

Last week the L.A. Times announced that Judge Alex Kozinski of the federal Ninth Circuit Court of Appeals recused himself from a high-profile obscenity trial being conducted in Los Angeles. It seems Judge Kozinski was found to have sexually explicit material on his computer that was posted on a publicly accessible personal web site.

Even though the viewing of sexually explicit images is one of the main uses of the Internet, people still are shocked by this discovery. Why? Is it because a judge was viewing such material or that it was accessible to the public? Or was it due to the nature of the trial he was presiding over?

What that tells me is that it is difficult, if not impossible, to have any secrets anymore. That person who was your best friend and confidant may be your enemy next year. And ready to share your deepest secrets.

I am told e-mails survive forever so those stupid text messages, so innocently sent when you are a teenager, may come back to haunt you when you are an adult. When you rent movies, a database keeps track of every movie you have ever rented. It may be for the purpose of assessing your taste and recommending other movies, but it sure feels funny when a computer knows more about my taste in movies than my own mother.

If you write a nasty letter to your opposing party, you have to review it to determine how it will read if that same letter is placed before a judge or your client. In fact, everything you do has the potential of being aired on YouTube (provided it is somewhat interesting to even a few viewers).

This lesson is an important one for those of us who blog or write articles. That means you are creating a body of work that can be searched and analyzed. Your opinions may come back to haunt you in the form of quoted material. So you are warned. From now on, consider every word you write (unless it is handwritten in a journal hidden in your mattress - forget it, not even then) can be discovered.

On the flip side, that means you have at your disposal tremendous resources so that you can research your clients (potential and existing), your opposing counsel, and your judge. The list could go on, really. You can research your future dates, contractors you are considering hiring, doctors, restaurants, hotels . . . and YOU! Not only can people research you but you should research you so you know what is out there. (Sorry, a severe overuse of the word "you.")

While those of us who know Judge Kozinski may believe he can handle (and maybe even enjoy) the heat, it is 15 minutes of fame that I would not wish on my closest friends. For me, I've decided to tell my secrets only to my dog, Casper, who is sworn to secrecy.

The high cost of a frivolous appeal

During the course of your career, you may be tempted to take on cases that are, shall we say, of questionable merit. When the client is offering to pay money for our services, it may be hard to say no or we may even convince ourselves of the merit of the client's position. At other times, we may just know taking on the case is probably the wrong course of action. And, of course, it can come back to haunt us in the end.

In In re Marriage of Gong & Kwong (May 29, 2008, A114589) 2008 WL 2206872, the husband promised to pay child support and half of his children's college expenses. His ex-wife relentlessly pursued him, obtaining a charging order that she be paid from his partnership interests. Mr. Kwong filed a motion to stop her, claiming he had fully satisfied his obligations. When the trial court denied that motion, he appealed.

The appellate court traced the history of the proceedings, one broken promise after another. Mr. Kwong argued that he satisfied his obligations, claiming the trial court's order was based on the arrearages as of the filing date of the charging order rather than the earlier hearing date. The difference in interpretations, if accepted, would mean that Mr. Kwong was relieved of his obligations to pay for a nine-month period.

The court confirmed its inherent power to dismiss frivolous appeals. Two standards are applied: (1) on a subjective basis, is the appeal being prosecuted for an improper motive, such as to harass the respondent or delay an adverse judgment, or (2) on an objective basis, would any reasonable attorney agree the appeal is totally and completely without merit. The appellate court concluded there was no question as to what was meant by the trial court's order and the appeal was frivolous.

An attorney who prosecutes a frivolous appeal may face the dismissal of the appeal, payment of respondent's attorneys fees or sanctions (here, $15,000 plus attorney's fees) and $5,900-6,000 to the court for processing the appeal. What is worse, in my opinion, is that for as long as there are published cases, the names of the attorneys will be linked to a finding they had filed a frivolous appeal. For instance, the court stated, "An inference of willingness to assist Mr. Kwong's harassment of Ms. Gong and to abuse the court's processes could be drawn from his counsels' sophistry and their litigation tactics, which went beyond proper advocacy and common sense." (Slip Opn., pgs. 10-11)

After reminding counsel of their ethical duties to reject cases that lack merit or are taken for the purpose of delay, the court also noted, "it is important to remember that '[a]n attorney in a civil case is not a hired gun required to carry out every direction given by the client.'" (Slip Opn., pg. 11) How would you like that opinion to follow you for the rest of your career?