A recent case out of the Fourth Appellate District in Orange County affirms a finding of contempt against an attorney for his conduct during a 15-minute settlement conference, including persistent interruptions and calling opposing counsel a liar, without explanation. In the opinion, the Court draws a line between zealous advocacy and bullying tactics: "[i]nterrupting an opponent's presentation to loudly proclaim that opponent is 'lying' or is a 'liar....is contemptuous."
In Moore v. Superior Court (D4d3 Nov. 16, 2020) No. G058609, attorney Kevin J. Moore represented the trustee in an action concerning a claim against the trust for child support. During a mandatory settlement conference, attorney Moore was "extremely rude, verbally aggressive, and unprofessional" toward opposing counsel and the pro tem judge, and "yelled at and accused" opposing counsel of lying and failing to research his case, though without explaining these accusations. Attorney Moore also "interrupted, talked over, and yelled at" opposing counsel and the pro tem judge, and "refused to calm down upon request." Opposing counsel remained calm throughout the 15-minute settlement conference. Attorney Moore also failed to file a settlement conference statement (though this proved to be an oversight by Moore's associate due to a medical situation).
At trial, the pro tem judge elaborated he and counsel "were unable to complete a sentence without being interrupted," and that attorney Moore "indicated an absolute refusal" to consider a lien against the trust.
An OSC re contempt was issued concerning attorney Moore's failure to submit a settlement conference statement, and failure to reasonably prepare for or participate in good faith at the conference. At the OSC, the opposing party testified attorney Moore "looked at my attorney and stated 'you could be dead'". Attorney Moore responded that this was not a threat but an observation that the proposed lien involved long-term considerations.
The opinion also relates: "Finally, essentially acknowledging his impropriety, and perhaps hoping that an act of contrition might cause him to escape any further consequences for his improvident behavior, Moore offered an apology to the attendees of the MSC at the conclusion of his direct examination." (Personally, I was chilled by the Court's reliance on attorney Moore's apology as "essentially acknowledging his impropriety." All members of the bench and bar should aspire to higher standards of civility. But signaling that an apology can and will be used against you in a court of law surely works against that goal.)
Attorney Moore was convicted on four counts of contempt, including:
- Blocking the temporary judge from seeking aid of the supervising judge, by arguing it would improperly divulge confidential settlement discussion.
- Two counts relating to failing to file a settlement conference statement.
- Failing to act in good faith.
The Fourth District, Division Three, reversed on the first three counts, as they were not adequately set out in the charging affidavit. The Court affirmed the finding of contempt on the fourth count.
In a fairly bright-line ruling, the Court held that the advocate's duty of zealous advocacy "is never properly discharged through name calling or by hurling insults," including "[i]nterrupting an opponent's presentation to loudly proclaim that opponent is 'lying' or is a 'liar....'" "In a word, it is contemptuous."
The Court relied heavily on a statement in attorney Moore's writ petition, characterizing his behavior as "employing a tactic in representing his client that included raising his voice and accusing [opposing counsel] of making false statements, which [Moore] believed to be true." While the sentence is vague due to poor construction, the Court accepted this as a concession that attorney Moore's behavior was not spontaneous, but was part of a strategy. This, the Court liked not at all.
The Court held that, while attorneys are entitled to "stand their ground," doing so while disrespecting the judge and judicial process, particularly as part of a premeditated tactic, is contemptuous.
The Court also reversed the award of fees and costs against attorney Moore, holding that such an award is only available for contempt that violates a court order. But the Court hastens to add: "Though Moore’s petition is largely successful, that success should in no way be construed as an endorsement by this court of his behavior."
Also worth noting: The Court pointed out that opposing counsel was calm and reserved in the face of attorney Moore's belligerence. Declining to rise to the bait of bad behavior served his client well.
Tim Kowal helps trial attorneys and clients win their cases. He co-hosts the Cal. Appellate Law Podcast at http://www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at https://kowallawgroup.com/perspectives. Contact Tim at [email protected] or (714) 641-1232.
