You represent the defendant in a lawsuit.  You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery.  Because of your admission, your client is allowed to obtain new counsel, but new counsel is unsuccessful in getting the sanctions order vacated, and a default judgment of $730,000 is entered against your client, who then promptly sues you for malpractice and, while that suit is pending, appeals the default judgment.  What do you do, besides give notice to your malpractice carrier?

If you’re the defendant’s first attorney in Styles v. Mumbert, case no, H029767 (6th Dist. July 15, 2009), you get the plaintiff in the original case (Styles) to assign her default judgment to you (for some undisclosed consideration), then, represented by another lawyer in your firm, you move the court of appeal to substitute you in as respondent in your former client’s (Mumbert’s) appeal from that judgment.  The court of appeal resists the invitation, concluding the opening paragraph of its opinion thus: ”Finding that the proposed substitution violates multiple rules of Professional Conduct as well as the Business and Professions Code, we will deny the motion.”

The absurdity of the possible outcomes!  The court says it much better than I could:

If we allowed [attorney] Pagkas to substitute himself as respondent, in place of Styles, on appeal Pagkas would have to argue that the default judgment, for which he may be professionally responsible, should be reversed. He would argue that the appeal should fail, so that he could collect on the default judgment. This is directly contrary to Mumbert’s interest. While a reversal here would be to Pagkas’s absolute benefit in the legal malpractice action, reducing any potential damages for professional negligence owed to Mumbert, Pagkas appears to prefer the prospect of collecting the large default judgment from Mumbert. In fact, if the substitution were allowed, it is conceivable that Pagkas could prevail in both the malpractice action and in this appeal, leaving him with huge windfall at the expense of his former client. Pagkas’s disregard for his ongoing fiduciary duties to his former client in favor of his own personal gain is without precedent.

Unsurprisingly, Mumbert asked for sanctions for having to oppose the motion, and got them.  On sanctions:

Pagkas’s actions make a mockery of the Rules of Professional Conduct. We cannot conceive of, and the case law is devoid of, a scenario which could do more violence to the attorney-client relationship and the public trust in the legal system, than what Pagkas and his firm have done and seeks to do.  Despite the well founded opposition to the motion, citing to the relevant Rules of Professional Conduct and supporting case law, Pagkas and his attorney continue to urge that we grant the motion without cogent argument or cite to relevant supporting authority. Under these circumstances, sanctions are appropriate.

What of the original plaintiff?

Respondent Delia Styles, having sold her interest in this action, and having failed to file a respondent’s brief, is ordered to show cause within 15 days from the date of this opinion why her default should not be entered and the appeal proceed without opposition.

I think Ben Shatz might have had to create a new category just for this case if it had been decided before Whittier Law Review published his study of appellate sanctions.

UPDATE (7/16/08): Tulane University Law School professor Alan Childress at Legal Profession Blog offers his thoughts, as well as a clever follow-up post.

I’ll tell you only that this time the attorney gets spanked for making the exact same argument the court had described as “unbelievably frivolous” in a prior case involving the same attorney.

The argument? Go to this post at Decision of the Day, where you’ll also find a link to a page that shows the lawyer in Collins is not alone . . . and that the same argument is now being made in the U.S. Supreme Court.

Legal Pad covers the merits. California Appellate Report tries to get inside the heads of the sanctioned lawyers.

The embarrassment must sting as much as the fine.

The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all.

The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to the record.

You’re thinking, “Well, that’s what you get for proceeding in propria persona,” right? Think again. Appellant had counsel. Yet the analysis and citation to evidence (it was an appeal from summary judgment) were also deficient:

Bare assertions and lists of facts unaccompanied by analysis and completely devoid of caselaw fall far short of the requirement that counsel present “appellant’s contentions and the reasons for them.”

Despite the court’s assertion that it was publishing the case “as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated,” it nonetheless conducts an independent review of the record in recognition of “the harshness of this rule, especially as its application could, if unwisely applied, leave a meritorious appellant without a legal remedy when the fault lies solely with his or her counsel.”

With this concern in mind, and despite the abject deficiency of the brief, we have reviewed Sekiya’s case on the merits based on a review of the district court record, and we are satisfied that the district court did not err.  Sekiya, however, is not “entitled to have us expatiate on our reasons for finding [her] case unmeritorious.” [Citation.]

Maybe the part I liked best was this quote:

In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief. [Citation.]

I think if I were a legal writing professor, I might talk about this case with my students and keep the phrase “slubby mass of words” handy.

UPDATE (12/5/07):  Lowering the Bar coins the term “Slubby Mass Rule” and delves into the etymology of “slubby.”

Thus in United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000), the Ninth Circuit held that it had jurisdiction to hear the appeal of an Assistant United States Attorney whom the District Court had found violated rule 2-100 of the California Rules of Professional Conduct. The issue in such cases is whether the order constitutes a “sanction.” In Talao, the court holds that a finding that an attorney violated a governing ethical rule is per se a sanction, and thus the attorney may separately appeal it.

Here’s how the article describes itself in its introduction:

This article attempts to fill that void [in literature regarding sanctions] by exploring the “5 W’s” — who, what, where, when and why — of California appellate sanctions by analyzing court of appeal sanctions awards from 2002 (the first year unreported cases were included in online search engines) through 2005.  More specifically, this article describes which courts award sanctions, how much is awarded (compared to how much was requested), how often courts awarded sanctions upon their own motions, what kind of errors (and how egregious) are necessary for an award, and against whom sanctions are awarded (parties, their attorneys, or both).

I’ve read the entire piece and find this introductory statement understates the depth of the article.

Few readers, I’m sure, will be surprised to learn that the article confirms that solo/small firm lawyers are sanctioned more often than lawyers from larger firms.  The article looks at this in a purely statistical sense.  Other commentators, of course, have alleged a bias against solos and small firms when it comes to discipline.  A good starting point for those who are interested is this post at Carolyn Elefant’s “My Shingle” blog, which includes links and a comment that offers some very plausible, bias-free reasons for the disparity.  That post addresses ethics committees, but Carolyn has also blogged on bias in the courts.  In this post, she comes to the defense of a “big firm” partner against whom a Florida judge issued an OSC re contempt for saying the judge was a “few french fries short of a happy meal,” and she links to her earlier posts on anti-solo judicial bias.

I was struck by how many of the cited cases were unreported.  The Court of Appeal should want to publicize the conduct that leads to sanctions, because this would inform and deter.  It could be that sanctions are so rare (awarded in approximately 1 out of every 500 cases during the studied period) that the Court of Appeal finds additional deterrence unnecessary.  Whatever the reasons for unpublished sanctions opinions, perhaps more of them will be published under the new rules for publication.

Unfortunately, there is no online version of the article available.  If that changes, I’ll let you know.

Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c).  The court determines that abuse of discretion applies here as well, since “the sanction is similar to that imposed under section 271 as well as similar to a sanction for civil discovery abuses (which are reviewed for abuse of discretion).”

USD Law Professor Shaun Martin has the local San Diego angle at California Appellate Report.