Q: In our civil case, the judge sanctioned the other law firm $1,500 for what he described as “unjustified conduct” in discovery. We think this firm has done more than just unjustified conduct. What could persuade the judge to sanction these lawyers more so?
C.A., Venice
A: There are a number of different events that can make sanctioning an attorney, firm or litigant valid and proper. In the civil arena, for example, this could involve misconduct in discovery (your case), or aberrant courtroom behavior, an ethics violation or failure to abide by a court order.
Discovery sanctions arise if the other party’s conduct is not substantially justified (the sanction can be against the lawyer or the client, or both). This is a less stringent standard than sanctions based on a frivolous court filing, or pursuit of a lawsuit for an improper purpose; these options require more convincing proof.
Violation of a court order or violation of a California Rule of Court may lead to a sanction as well; for these, the proof will be in the pudding (such as if an attorney was ordered to provide “x” and does not).
The justification for sanctioning a lawyer, firm or litigant is to seek to uphold the integrity of the judicial system, and also to make clear that the behavior being punished is not acceptable.
Q: We are in the same case as “C.A., Venice,” who asked you what it takes for a judge to sanction a lawyer. Is money the only sanction, though?
C.L., Venice
A: A monetary sanction is often an available choice to sanction an attorney, firm or litigant. The amount can be based on attorney’s fees generated, and/or court costs and/or fines payable to the court itself.
Under California Code of Civil Procedure Section 177.5, there is a sanction of up to $1,500 for violation of a court order.
Another form of sanction can be issue based. This means the court deems certain facts to be established in the case, or could preclude the party from asserting certain claims and/or defenses. Then, an alternative could be evidence based, such as prohibiting introduction of specific items, or excluding testimony and/or records.
In a particularly egregious situation, the court may strike a pleading, dismiss a claim, enter a default judgment or stay proceedings until there is compliance.
A contempt sanction can result in imposition of a fine, and/or possibly jail time in very serious matters.
Lastly, professional discipline should be mentioned here as well, by which the State Bar may issue a private or public reproval of a lawyer, suspend him or her from practice, or in a worst case scenario, disbar the lawyer.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
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