Divorcing couples who want to use their attorneys as a weapon of mass destruction to belittle and harass the other side, beware.
A new published case from the First District Court of Appeal titled “Marriage of Davenport” (2011 S.O.S. 2343) (Cal.App. 5-4-2011), filed May 4, 2011 took to task a young lawyer whose poison pen letters to his opponent backfired after he filed a motion for sanctions. This is a mistake you must avoid.
In the end, his client was the one who was ordered to pay $100,000 in sanctions and over $300,000 in attorneys’ fees for his bad behavior!
The young, inexperienced attorney wrote mean spirited, nasty letters in which he degraded the integrity of his opposing counsel, accused them of being dishonest, and insulted them in numerous other ways. The trial court wrote a 31 page Statement of Decision stating why the court was ordering his client to pay sanctions and fees to her husband’s attorneys. The Court of Appeal upheld the trial court’s sanction order. In so doing, the court gave the following reasoning for admonishing the young attorney who wrote abusive, rude, and/or hostile correspondence to his client’s husband’s attorneys:
“Beyond all that, there is evidence of Andrew Watters’ treatment-more accurately, mistreatment- of his opposing counsel in his correspondence with them. Bad enough that such correspondence occurs in any litigation. It is utterly inconsistent with a fundamental aspect of proper family law practice. ‘Family law cases are not supposed to be conducted as “adversarial” proceedings. Quite the contrary, the goal is to reduce acrimony and adversarial approaches common to general civil litigation and, instead, to foster cooperation between the parties and their counsel with a view toward settlement short of full-blown litigation. [See Fam. C. §§ 2100 (b), § 271 (a) (sanctions for uncooperative conduct in family law cases); see also Cal. Atty. Guidelines of Civility & Professionalism § 19-‘in family law proceedings an attorney should seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere, and keep the best interest of the children in mind’]” Davenport at page 29-30 [emphasis in original].
The Family Law Court went on to warn:
“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… (Citations omitted) …Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” id at page 33.
So the next time you want your lawyer to send a scathing letter to the opposing attorney, you might want to check your bank balance to see if you can really afford the consequences for so doing.