How to hold game-playing counsel accountable for their misdeeds

In 2018, the State Bar of California overhauled the rules of professional ethics. One major rule change provides an additional weapon for attorneys facing deceptive opposing counsel and parties. Taken together with other statutes and cases, attorneys may, with reasonable rates of success, obtain sanctions against such game-playing attorneys and their clients.

Imagine having a client needing to reduce their support obligation due to a dramatic drop in their income. You set your support modification hearing and you and your client patiently await the hearing date. Shortly before the hearing, the opposing party changes attorneys and the new attorney seeks a continuance of your client's hearing, claiming they have a trial set the same day as your client's hearing. After reluctantly agreeing to the continuance, the new opposing attorney then serves your client with a raft of discovery your client would not have had to reply to if the original hearing date had remained as originally scheduled. Thereafter, you learn that in seeking a continuance of your client's motion, the opposing attorney misled you; in reality, the attorney did not have a conflict.

Rule of Professional Conduct 3.2, one of the new rules, provides that, "In representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense." This new rule expressly prohibits intentional delay tactics that increase litigation costs, limit access to justice except for the affluent, and frustrate the ability to obtain a remedy. The California rule differs from ABA Model Rule 3.2, which states that a lawyer "shall make reasonable efforts to expedite litigation consistent with the interests of the client."

Other means for addressing game-playing attorneys include local rules of professional conduct. For example, Santa Clara County's Rules of Professional Conduct indicate that a lawyer should at all times be civil, courteous and accurate in communicating with adversaries, whether in writing or orally. In addition, a lawyer should not seek extensions or continuances for the purpose of harassment or extending litigation. See Santa Clara County Bar Association Code of Professionalism.

Similarly, a statewide rule provides that as officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy and cooperation, all of which are essential to the fair administration of justice and conflict resolution. See California Attorney Guidelines of Civility and Professionalism.

Other rules more generally address an attorney's duty to be forthright in their dealings with the court and counsel. See Business and Professions Code Sections 6068(d), 6106 and 6128; State Bar Rule 8.4(c).

Civil litigants may look to statutory law for relief too. For example, Code of Civil Procedure 128.5(a) provides that a trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. Code of Civil Procedure Section 128.5 has a 21-day safe harbor requirement, which allows an attorney or litigant accused of engaging in inappropriate tactics a window of opportunity in which to remedy their transgressions.

Attorneys having a family law-related case may rely on Family Code Section 271, in addition to Code of Civil Procedure Section 128.5(a). The former statute provides that the court may base an award of attorney fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

Under Family Code Section 271, the trial court may impose sanctions against an intransigent party for the party's own conduct, or for the conduct of counsel. In re Marriage of Olson, 14 Cal. App. 4th 1, 5 (1993). The actions of counsel may be imputed to the party.

The foregoing authorities should serve as a deterrent to attorneys seeking to engage in misconduct, including using delay tactics or not being forthright, since such behavior is now more widely viewed as interfering with the speedy and fair administration of justice and impairing opportunities to resolve cases. 