Appealing Discovery Sanctions in California

Posted on February 15, 2012 by mary

In California, only sanction orders or judgments exceeding $5,000 are appealable prior to final judgment. (Code Civ. Proc., § 904.1, subd. (a)(12).) If you want to appeal a sanction award less than $5,000, you have to wait until after entry of final judgment in the main action. (Code Civ. Proc., § 904.1, subd. (b).)

Strategically, then, if you want the opposing party to have to wait until after entry of final judgment to be able to appeal and therefore stay the enforcement of a sanctions order, your sanctions request should not exceed $5,000.

Code of Civil Procedure § 904.1 states in relevant part:

(a) An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following:

(11) From an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).

(12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).

(b) Sanction orders or judgments of five thousand dollars ($5,000) or less against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ.

 

Disclaimer: Statutes are subject to change.

Facing Sanctions? Not if the party, person, or attorney to be sanctioned wasn’t identified in the Notice of Motion.

Posted on January 15, 2012 by mary

Although most attorneys know that a request for sanctions must contain certain information and must also be placed in the Notice portion of a motion, once in a while you get lucky and both the caption page and the Notice of Motion just states something like this:

“Party A requests sanctions in the amount of $2,300.”

This is insufficient notice under Code of Civil Procedure §2023.040 and any award of sanctions should be denied, or reversed on appeal. Code of Civil Procedure §2023.040 states in relevant part:

 A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.

Courts have enforced this notice requirement. The individual or party against whom the sanctions are sought must be identified in the notice of motion. (Corralejo v. Quiroga (1984) 152 Cal.App.3d 871, 874 [order imposing sanctions on attorney reversed where notice of motion did not clearly provide that sanctions were being sought against attorney]; cf. Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207-210 [default judgment reversed because moving party failed to specify in notice of motion that it sought terminating sanction, although notice of motion sought monetary sanctions and memorandum of points and authorities advised court it could consider terminating sanction]; see also Capital Gold Group, Inc. v. Michael Thomas Media Group, LLC (2008) 2008 WL 4560224, 3 (unpublished).)

A request for sanctions must comply with due process and express notice requirements. If it does not, be sure to bring it to the Court’s attention.

Can attorneys ghostwrite briefs and petitions for pro se litigants?

Posted on December 8, 2011 by mary

We know freelance/contract attorneys can “ghostwrite” briefs for other attorneys, but can they do so for pro se litigants without disclosing their involvement? In a recent opinion, the Second Circuit Court of Appeals said yes. This ABA Journal article references a 2007 ABA Ethics Opinion about attorneys providing undisclosed assistance to pro se litigants. According to the ABA Standing Committee on Ethics and Professional Responsibility:

“the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of the litigation.” Nor did the ABA committee share the concern that pro se litigants will “receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance….”

The ABA committee also concluded that nondisclosure of the fact of legal assistance was not dishonest so as to be prohibited by Rule 8.4(c).

 

Is this the most “Californian” of the California Rules of Court?

Posted on June 9, 2011 by mary

 California Rule of Court 1.22 mandates the use of recycled paper for court-filed documents! I think I hear Texas laughing. Raise your hand if you knew you were supposed to be purchasing recycled paper in bulk for your law office. I didn’t think so.

Rule 1.22 states:

(a) Use of recycled paper required

Recycled paper, as defined in rule 1.6, must be used for all original papers filed with the trial and appellate courts and for all copies of papers, documents, and exhibits, whether filed with the courts or served on other parties.

(b) Certification

Whenever the use of recycled paper is required by these rules, the attorney, party, or other person filing or serving a document certifies, by the act of filing or service, that the document was produced on paper purchased as recycled.

How do you bill out a freelance aka contract attorney? Can it be profitable?

Posted on June 4, 2011 by mary
Dollar Bill

 

What you really want to know is, “Can I make a profit by billing out a contract attorney to my client at a higher rate than I am paying the contract attorney?”

The answer, basically, is yes. In a 1993 Formal Opinion, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility reasoned that since contract attorneys provide legal services, which are the very type of service law firms were established to provide in the first place, law firms should be able to realize a profit on their use of contract attorneys. So, while you cannot mark up the cost of, say, photocopies or court reporter fees, you can mark up the cost of a freelance or contract attorney so long as the final fee charged to your client remains “reasonable”. In this respect, it is similar to billing for an associate’s or paralegal’s time. Because you must certify or “sign off” on any pleadings as your own, you must review the work product of your freelance attorney. This is why a surcharge is appropriate.

Some states limit how you can describe the contract attorney to your clients. For example, the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York stated that a firm may not refer to a contract attorney as an “associate” for billing. The New York Bar did not require firms to inform clients that they were using contract attorneys, nor did it address the rates at which law firms could or should bill contract attorneys.

The use of contract attorneys can benefit law firms, their clients, and, of course, freelance contract attorneys. Indeed, in August 2008 the ABA issued Op. 08-451 praising the use of contract attorneys. The Opinion explains how the use of contract attorneys actually increases the quality of services provided by some small firms to its clients:

“A small firm might not regularly employ the lawyers and legal assistants required to handle a large, discovery-intensive litigation effectively. Outsourcing, however, can enable that firm to represent a client in such a matter effectively and efficiently, by engaging additional lawyers to conduct depositions or to review and analyze documents, together with a temporary staff of legal assistants to provide infrastructural support.”

However, just because you can mark up a freelancer’s hourly rate doesn’t mean you should mark it up to your own hourly rate. The flexibility should ultimately benefit your clients. This means that, if your client is on a budget, you can pass off a freelancer’s work at a straight cost or with only a moderate surcharge, and still deliver excellent work to them on your busy schedule.

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