California courts sanction attorney misconduct

During my years of litigating and consulting, I often worried about being on the receiving end of a lawsuit against me or a referral to the State Bar for supposed bad behavior. In my post litigation/consulting status, those stressors are gone. I now can objectively consider the action of attorneys who have done dumb things, leading them to experience a pile of trouble. Two recent California cases are illustrative.

Case One: In Re Paul M. Mahoney on Contempt

65 Cal.App.5th 376 (2021)

Attorney Mahoney (“Mahoney”) filed a petition for rehearing on behalf of his client, Salsbury Engineering Inc. In this petition, he impugned the integrity of the trial court and the Court of Appeals. To compound matters, as the Court of Appeals noted… “In that petition, he cited not a single statute or opinion and made no attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one.”

Among the more damaging comments made by Mahoney in his petition, were the following: “Our society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by (sic) ignored by the actions of people like Tom Girardi (author’s note: Mr. Girardi is an attorney whose alleged transgressions received a great deal of media attention in Southern California).”

“Because of a slight (sic) of hand with no factual basis, this court has altered the landscape and created a windfall for Consolidated (author’s note: Consolidated was the prevailing party in the lawsuit involving attorney Mahoney’s client, Salsbury Engineering Inc.).”

Mahoney also:

Suggested that the court “did not follow the law.”

Suggested that the court “ignores the facts.”

Concluded that the court “indiscriminately screw(ed)” Salsbury.

The Court of Appeals noted that thereafter, rather than expressing contrition for his actions, Mahoney “doubled down” on his original petition.

In a stinging opinion, the Court of Appeals noted that letting the Court know you believe it is wrong, even forcefully, is acceptable, so long as you explain the perceived error, analyze the cases relied upon and describe the mistake. However, what is not acceptable is attacking the court by accusing it of not following the law, and claiming its decisions are based upon corruption and political influence.

Mahoney was held in contempt under Penal Code section 166 for implying that the trial court was influenced by political means and for his aspersion that the court was indistinguishable from or inclined to ignore the unethical conduct alleged against attorney Girardi. Mahoney was fined $2,000. Moreover, under Business and Professions Code section 6086.7, the judgment of contempt was referred to the State Bar.

Case Two: Shenefield vs. Shenefield

(February 25, 2022) Court of Appeal 4 Civil D078643 (Div 1) 75 Cal.App.5th 619

(Note: this case is currently under appeal to the California Supreme Court)

Mark Shenefield (“Mark”) filed a request for order seeking joint legal and physical custody of the party’s minor child.

In support of his request for order, Mark submitted a declaration in which he quoted from and referenced contents of a confidential, court-ordered psychological evaluation done during his spouse, Jennifer’s, prior marital dissolution. Mark’s attorney, Karolyn Kovtun (“Kovtun”) filed the declaration on Mark’s behalf.

Jennifer opposed Mark’s request for joint custody and requested sanctions against Mark and Kovtun for their violations of Family Code Sections 3111(d) and 3025.5, which relate to inappropriate disclosure of confidential custody evaluations.

At trial, Mark did not file a trial brief. Jennifer, on the other hand, filed a detailed trial brief in which she discussed the reasons why Mark and Kovtun should be sanctioned.

Following trial, during which the issue of sanctions was argued, the court imposed $10,000 in sanctions against Mark and $15,000 in sanctions against his attorney.

Kovtun filed a motion under Code of Civil Procedure section 473(d) (motion seeking to set aside any void judgment or order. This motion was denied.

Kovtun argued on appeal that attorneys could not be sanctioned under Family Code section 3111. This argument was rejected as no such exception exists in the statute.

Kovtun also argued that she had not received proper notice of the sanction request. This argument was also rejected as there is no requirement that a separate request for order seeking sanctions be filed and served. This case thus clarifies that the court may impose sanctions on counsel, regardless of whether a separate request is made, so long as due process is found to have existed. In this case, Jennifer’s trial brief had indicated sanctions were requested and the sanctions issue had been mentioned at the trial readiness conference. The Court of Appeals also indicated that the safe harbor provision of Code of Civil Procedure section 128.7 was inapplicable.

Kovtun’s other argument, that the transcript of a Sept. 28, 2017, meeting at Kovtun’s office, was improperly admitted into evidence and considered. The justices noted that “confidential communication” as defined in the statute excludes “a communication made in any…circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” In this case, the meeting was not a confidential communication since Kovtun was aware that Jennifer was authorized through the issuance of a restraining order and criminal protective order, to record violations of the protective orders.

The Court of Appeals affirmed the trial court’s order imposing sanctions against Karolyn.

As has occurred in the past few years, these recent cases note that our Judges have welcomed zealous client representation to a degree. Attacking the court’s integrity or violating a statute crosses the line, however, and may result in substantial sanctions being imposed against the transgressing attorney.