The California Court of Appeal for the Fourth Appellate District in Marriage of Bianco (No. D062061 – 11/22/2013) reversed a $43,000 sanctions award against a family law attorney which had been levied after the attorney, in 2011, engaged trial co-counsel who was then ineligible to practice law for failing to comply with mandatory continuing education requirements under the California State Bar Rules of Professional Conduct to try certain issues in the wife’s marital dissolution action. The ineligibility of trial co-counsel for the wife was discovered by the trial judge on the last day of trial; the court then declared a mistrial and invited husband’s counsel to bring a sanctions motion. Husband’s sanctions motion under California Rule of Court, rule 2.30(b), based on the wife’s trial counsel’s violations of Rules 1-300 and 1-311 of the Rules of Professional Conduct, was granted; $43,000 in sanctions were eventually imposed against wife’s attorney, jointly and severally with the ineligible attorney. (Those provisions of the RPC prohibit an attorney from aiding anyone in the unauthorized practice of law and employing or associating anyone the member knows or should have known was involuntarily inactive from appearing on behalf of a client in any hearing or proceeding.)
Wife’s attorney appealed, arguing that the trial court abused its discretion by, among other things, including in its monetary sanctions order amounts not authorized by Rule 2.30(b). Rule 2.30(b), as it was then constituted, applies to “the rules in the California Rules of Court relating to general civil cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate division of the superior court, and small claims cases.” (Italics added.) The appeals court agreed, concluded this rule did not apply because (1) the Rules of Professional Conduct are not part of the California Rules of Court, only of the State Bar of California; and (2) the underlying matter was not a ‘general civil case,’ defined as “all civil cases except . . . family law proceedings,” (Cal. Rules of Court, rule 1.6(4)), and reversed the sanctions order.
NOTE: The appellate court explained its ruling by noting that, effective January 1, 2013, after the conduct at issue in this matter had occurred, the Judicial Council of California adopted a new rule authorizing sanctions for violations of court rules in actions or proceedings brought under the Family Code. (Cal. Rules of Court, rule 5.14.)
This decision illustrates the importance of due diligence by practitioners when engaging co-counsel. A quick check of such prospective co-counsel’s status with the State Bar could have avoided all of the foregoing difficulties. Go to http://www.calbar.ca.gov/ and click on the “Attorney Search” function near the top of the page to check for any actions affecting an attorney’s eligibility to practice law in California.
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