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Attorney Held in Contempt for a "Perfect Exemplar"​ of Impugning Integrity of the Court

Tim Kowal     June 18, 2021

I do not know who needs to hear this, but the Court of Appeal does not want to take any chances: While there are many tools of persuasion in the advocate's toolkit, accusing the court of being on the take from the Irvine Company, and being as corrupt as Tom Girardi, are not among them. And even supposing you cannot help yourself from exposing the court to your maledictions and invective, you might give a thought to including a legal argument or two.

The recent published case from the Fourth District, Division Three, offers "a perfect exemplar ... to illustrate the phrase 'impugn[] the integrity of the court.'" (Salsbury Eng'g, Inc. v. Consol. Contracting Servs. (In re Mahoney) (D4d3 Jun. 10, 2021) no. G057832.)

After losing his client's appeal, attorney Paul Mahoney gave it one last go in a petition for rehearing. Petitions for rehearing are rarely granted. Generally, unless the decision was based on a clear misunderstanding of the record, or an argument that was not raised, the panel will not be inclined to rehear the case.

So attorney Mahoney decided to let 'er rip. He accused the court of "judicial slight [sic] of hand," being influenced by the "political clout" of the Irvine Company, something to do with Tom Girardi – either resembling Girardi or condoning Girardi-like conduct; no time to clarify, Mahoney was rolling – and "indiscriminately screw[ing]" his client.

The basis for Mahoney's petition for rehearing? Apparently he had tired himself out with nine pages of contumely and general abuse before getting to that: "he cited not a single statute or opinion and made no attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one."

The court set an order to show cause why attorney Mahoney should not be held in contempt for "impugning the integrity of the court." Mahoney's move: "[I merely] mentioned the obvious things that go on in Orange County which has a lot to do with The Irvine Company, plain and simple."

Detecting rather less contrition than hoped for, the court hit Mahoney with two contempt citations of $1,000 each: one for seemingly impugning the court's integrity, and the second for removing all doubt. (The decision was ordered forwarded to the State Bar as well.)

At the hearing, the court noted, Mahoney at times "seemed ready to moderate his stance," before he would "change direction and return to it."

"Thankfully," the court observed in a footnote, "this [kind of conduct] does not come up much." But given Mahoney is a 52-year member of the bar, the court published its decision as a warning that "This over-the-top, anything-goes, devil-take-the-hindmost rhetoric has to stop."

The court also offered a short treatment on the "institutional respect accorded the courts," with citations to Coke, Bacon, and Black for the proposition that all errors and aberrations committed by our system of justice are presumed to be innocent ones.

(This commentator thinks the stoics have the more apt lesson. "By nothing," Epictetus had it, "is the rational creature so distressed as by the irrational." In Mahoney's case, what seemed particularly distressing was the marked pointlessness and witlessness of Mahoney's insults.)

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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