ETHICAL CONCERNS General Trial Unethical conduct is sanctioned by: sanctions, State Bar, reputation, moral compass Hypo customer sues shareholder and corporation. Unethical if intent is to harass – trial CCP 128.7 Hypo 14 affirmative defenses, D says 7 will be developed with additional discovery – and investigation. OK under CCP 128.7(b)(3), which says further evidence will be identified with further investigation Court could sanction a party who refuses to grant a first extension of time (unless time is of the essence, and client would be harmed by granting an extension) COI must get informed consent in writing, opp to seek independent counsel – Most conflicts can be waived, but cannot represent both sides in court Statutes CCP 128.7 (similar to FRCP 11) Governs pleading, petition, written notice of motion, or similar paper Sanctions don’t apply to discovery (a) Signature requirement (but pleading does not need to be verified or accompanied by affidavit) (b) Atty represents: (1) papers not for improper purpose, (2) claims/defenses warranted by existing law (or nonfrivolous), (3) allegations have evidentiary support or likely to have evidentiary support after discovery, (4) denials of factual contentions warranted by evidence (c) Court can sanction party or attorney that violates (b) when opposing party makes a separate motion Motion by party - must give opposing party 21 days’ notice before filing motion for sanctions (i.e. must give party chance to correct error) Court’s own motion If improper motion for sanctions, moving party can also be sanctioned LA Local Rule 3.26 / Appendix 3.A Meant to be a guideline for civility in litigation, might not actually govern a case CRC 2.30 Prof. has never actually seen this cited Governs sanctions for violations in civil cases Clark v. Optical Coating Laboratory TAKEAWAY: court must have express authority to impose sanctions (from a statute). CCP 128.7 does not give authority to sanction for proffering barred evidence Sanctions are a disfavored remedy (chills litigation) Denies due process to take money without express authority P’s repeatedly violate order to exclude damages evidence during liability phase. Court awarded atty fees as sanctions, saying it has inherent authority under CCP 128.5 (party can pay reasonable expenses for bad faith actions)
ETHICAL CONCERNS General Unethical conduct is sanctioned by: sanctions, State Bar, reputation, moral compass Hypo – customer sues shareholder and corporation. Unethical if intent is to harass CCP 128.7 Hypo – 14 affirmative defenses, D says 7 will be developed with additional discovery and investigation. OK under CCP 128.7(b)(3), which says further evidence will be identified with further investigation Court could sanction a party who refuses to grant a first extension of time (unless time is of the essence, and client would be harmed by granting an extension) COI – must get informed consent in writing, opp to seek independent counsel Most conflicts can be waived, but cannot represent both sides in court Statutes CCP 128.7 (similar to FRCP 11) Governs pleading, petition, written notice of motion, or similar paper Sanctions don’t apply to discovery (a) Signature requirement (but pleading does not need to be verified or accompanied by affidavit) (b) Atty represents: (1) papers not for improper purpose, (2) claims/defenses warranted by existing law (or nonfrivolous), (3) allegations have evidentiary support or likely to have evidentiary support after discovery, (4) denials of factual contentions warranted by evidence (c) Court can sanction party or attorney that violates (b) when opposing party makes a separate motion Motion by party - must give opposing party 21 days’ notice before filing motion for sanctions (i.e. must give party chance to correct error) Court’s own motion If improper motion for sanctions, moving party can also be sanctioned LA Local Rule 3.26 / Appendix 3.A Meant to be a guideline for civility in litigation, might not actually govern a case CRC 2.30 Prof. has never actually seen this cited Governs sanctions for violations in civil cases Clark v. Optical Coating Laboratory TAKEAWAY: Trial court must have express authority to impose sanctions (from a statute). CCP 128.7 does not give authority to sanction for proffering barred evidence Sanctions are a disfavored remedy (chills litigation) Denies due process to take money without express authority P’s repeatedly violate order to exclude damages evidence during liability phase. Court awarded atty fees as sanctions, saying it has inherent authority under CCP 128.5 (party can pay reasonable expenses for bad faith actions) trial