2021 In Review: Cases Involving Lawyers

• Published date: 30 March 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Insolvency/Bankruptcy, Trials & Appeals & Compensation
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Mr Kenneth Feldman and Alex A. Graft

In these polarizing times, civility is too often lacking -- and in 2021, California appellate courts made clear they were not pleased about it. In addition to addressing nuances to the causation element pertaining to legal malpractice claims and publishing malicious prosecution cases, the appellate courts tilted their focus to issues of attorney behavior, which must continue to be a positive example for society at large, and not the other way around.

Attorney Conduct Cases

Lawyers are professionals, and should thus act like it, said the court in In re Mahoney, 65 Cal. App. 5th 376. There, the appellate panel was confronted with an attorney's petition for rehearing void of legal citations, but which accused the court of favoring a litigant because it, "wield[s] a lot of legal and political clout in Orange County." Commenting that, "[o]ur society has been going down the tubes for a long time," the petition's author went on to impugn the integrity of the court.

The response from the court in Mahoney was a fine for contempt and a reminder: "We are professionals. Like the clergy, like doctors, like scientists, we are members of a profession, and we have to conduct ourselves accordingly. Most of the profession understands this. The vast majority of lawyers know that professional speech must always be temperate and respectful and can never undermine confidence in the institution. Cases like this should instruct the few who don't."

The court in Karton v. Ari Design & Construction, Inc., 61 Cal. App. 5th 734, was on a similar page, commenting -- while reducing an attorney's fees due to the attorney's perceived lack of professionalism -- that, "[i]t is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook." In Karton, an attorney representing himself sought statutory attorney fees from an unlicensed contractor he had hired to remodel his home in an amount that the court deemed excessive, reducing it about three-fold. The case was simpler than the attorney had made it, and the court determined that he had overlitigated the case.

Yet it was the lack of civility by the attorney throughout the handling of the matter that as much as anything justified the reduction in the fee, as it denoted a lack of skill which warranted adjusting the lodestar calculation: "Civility is an aspect of skill. Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points. Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears."

Malicious Prosecution Cases

Malice is another form of incivility that can lead to financial detriment. However, as the court properly held in Dunning v. Clews, 64 Cal. App. 5th...