LAWYER COPIES BRIEF, FILES IT IN COURT OF APPEAL: $10,000 SANCTION.

In my years as an appellate lawyer, I’ve seen many instances where attorneys have been sloppy, cut ethical corners, and otherwise behaved unprofessionally.  This one, however, stands out for laziness, disregard for client and process, and no idea that he might in fact get caught.  A cautionary tale, well told by Justice Bedsworth.  I quote liberally from his opinion.

In Kim v. Westmore Partners, Inc. (2011) ___ Cal.App.4^th ___, 2011 WL 5925228, respondent’s lawyer asked the Court of Appeal (4^th District) for extension of time to file his brief:

“In that request for extension, Donahue explained—under penalty of perjury—that additional time was required to file the brief because of the many “complex issues raised” by appellants and his “[n]eed [for] more time to research cases & finalize brief….” He also cited “other time commitments of counsel.” The extension was granted.  However, when Donahue filed his brief, it belied his claim that he had been engaged in any significant research in connection with this appeal, as well as his claim of needing any significant time to “finalize” his brief. In fact, Donahue’s brief proved to be an almost verbatim duplicate of another brief he filed with this court in September of 2009, in the case of Nguyen v. Castillo (G041494).”

In a published opinion, the Court really lit into the lawyer:

“Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel. The fact a respondent has no obligation to file a brief at all, in no way excuses his counsel’s misconduct if he chooses to do so. The conduct of Timothy J. Donahue, Kim’s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case—including a boilerplate accusation of misconduct against appellants’ counsel and a boilerplate request for sanctions based on a purportedly “frivolous” appeal—will not be countenanced.  Donahue’s response to this court’s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue’s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.  * * * *

Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It’s time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions.

We do not come to this conclusion lightly. Judges are lawyers, too. And while we have taken on a different role in the system, we have not lost sight of how difficult it is to practice law. Indeed, at the appellate level, we are reminded daily how complex and recondite the issues that confront practitioners daily can be.

So we are loath to act in any way that would seem to encourage courts to impose sanctions for mistakes or missteps. But for serious and significant departures from the standard of practice, for departures such as dishonesty and bullying, such steps are necessary. We will step onto the slippery slope and trust our colleagues on the trial court bench to tread carefully along with us. It is time to make it clear that there is a price to pay for cynical practices.

If this be quixotic, so be it. Rocinante is saddled up and we are prepared to tilt at this windmill for as long as it takes.  * * * *

The court having found that Timothy J. Donahue, State Bar No. 110501, has violated court rules in such a degree as to require sanctions in the amount of $10,000, the clerk of this court is ordered, pursuant to Business and Professions Code section 6086.7, subdivision (a)(3), to forward a copy of this opinion to the State Bar upon return of the remittitur, and to notify Mr. Donahue that the matter has been referred to the State Bar.”

MM: I would add another concern: Mr. Donahue disrespected the Justices themselves.  Appellate judges take their work very seriously.  They realize that they are usually the final stop on the road to justice.  There aren’t many rules restricting how an appellate lawyer must behave, but the rules that exist are very important.  They ensure that the Court gets the facts right (through a proper record) and gets the law right (through proper citations of relevant authority).  The Justices need both if they are to come to the correct result for the parties and – in a published opinion – sets precedent for the rest of society.  A lawyer who ignores these goals assaults the Justices where it really hurts.