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?

Comments

[Lisa Solomon]

I'm working, with the respondent, on two related New York appeals that are completely frivolous. The appellant has been sanctioned numerous times at the trial court level for frivolous conduct (and hasn't yet paid a penny of the sanctions). In our most recent brief, we asked for sanctions for the appellant's frivolous conduct at the appellate level, but the court has already let the appellant (who keeps firing and re-hiring her lawyer) get away with murder. We hope to get sanctions against the appellant's lawyer, since the appellant (who has already been discharged in bankruptcy) clearly has no intention of paying the sanctions already imposed on her.