New California appellate case in part discusses attorney rules of professionalism and professional conduct – and that “Lawyers may not make assertions in court that lack factual support, regardless of how much the lawyer or the client ‘earnestly believes’ them,” and “the legal profession runs on facts, law, and justice.” Whereas the facts in N.D. v. The Superior Court (E.F.) involve attorney conduct or misconduct at the trial court level and also at the appellate court level, and in part pertain to accusations that were made against the trial judge, the discussion and the quotes from the case in this post pertain to attorneys in the whole and overall (N.D., Petitioner v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, E.F., Real Party in Interest (January 20, 2-26) 117 Cal. App. 5th 1292).

It is too relatively easy to throw a bunch of unsupported fact and law allegations into a pleading or other filing with the court, and it also can be easy to argue unsupported fact and law allegations, including new allegations, at a hearing, if the court so allows over objection. For the most part, the majority of attorneys do not do this, and many judges will not allow it, but it still happens. Whereas it is easy to throw in a bunch of persuasive one-liner allegations, it takes considerable time and effort to then disprove them. A case like N.D. v. Superior Court (E.F.) along with other already existing supporting authorities are important to help try to keep cases under procedural and legal due process control.

The following are quotes from the case:

“There are many respected professions in which one may write solely to express someone’s sentiments. An advertiser can trumpet the good qualities of their client’s product without disclosing the negatives. A PR professional can put their client’s crisis in the best light without acknowledging the counterpoints. A speechwriter can craft aspirational promises without conceding the candidate’s limited ability to follow through. In these fields, delivering the client’s message is the name of the game.

The law is not one of those professions.

Lawyers are not mere mouthpieces for clients. Our profession depends on exercising judgment in what we say and how we say it. At times, the only correct professional judgment is to tell the client, “no.”

We publish this opinion as a cautionary tale: Lawyers may not make assertions in court that lack factual support, regardless of how much the lawyer or the client “earnestly believes” them. Lawyers may not impugn the integrity of the very system of justice in which they serve without a solid basis in both fact and law. Dissatisfaction with a ruling, however deeply felt, is not itself evidence of judicial misconduct.”

* * * * *

“Most lawyers show remarkable skill in helping clients understand our professional obligations yet too many mistake the need for zealous advocacy with a “the customer is always right” policy. We remind them that the legal profession runs on facts, law, and justice. The law cannot tolerate unsupported assertions fueled only by desires, especially baseless accusations against our hardworking trial judges.”

* * * * *

“‘This court may find a writ petition to be frivolous and order sanctions if we conclude the petition was prosecuted for an improper motive or the petition is indisputably without merit . . . .’”

* * * * *

“We are particularly concerned with [attorney’s name removed for this post] disregard of his duty to uphold the respect owed to the judiciary. It is one thing to assert in a petition that the trial court committed error. An attorney acts well within their duty as an advocate to raise good-faith arguments challenging rulings, even when it presents an uphill battle. There is nothing inherently improper about making allegations of bias or discrimination against a trial court. (Citations omitted.) Attorneys can and should raise such claims, even if they are ultimately unsuccessful—as long as there is a plausible legal basis and evidence in the record to support them.”

* * * * *

“Rather than offering evidence, [attorney’s name removed from this post] wrongly relies on “earnest” beliefs he shares with his client. An attorney cannot raise a claim in court based solely on the sincerity of an unsupported belief. (Rules of Prof. Conduct, rules 3.1 [a lawyer shall not “assert a position in litigation” “without probable cause”], 3.3 [a lawyer shall not “knowingly make a false statement of fact or law” to the court].) “[C]ounsel has a professional responsibility not to pursue an appeal [or assert a position] that is frivolous or taken for the purpose of delay, just because the client instructs him or her to do so.” (In re Marriage of Gong & Kwong (2008) 163 Cal. App. 4th 510, 521.)

An attorney’s duty to advocate zealously for their client does not trump the equally important duty to “exercise independent professional judgment and render candid advice.” (Rules of Prof. Conduct, rule 2.1) An attorney owes a duty to the client and the profession to advise the client that accusations like those presented here must be supported by evidence in the record. If the client continues to press the attorney to raise the claim in court, “the high ethical and professional standards of a member of the bar and an officer of the court require the attorney to inform the client that the attorney’s professional responsibility precludes him or her from pursuing such [a claim].” (In re Marriage of Gong & Kwong, supra, 163 Cal. App. 4th at 521.)”

Concluding comments:

N.D., Petitioner v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, E.F., Real Party in Interest is another case in a line of legal authorities and rules of professional conduct which hold that an attorney cannot plead or make or be involved in pleading or making claims or arguments that are not sufficiently supported by actual existing facts (evidence) and supporting law – that doesn’t mean that those facts (evidence) and that that law will or must ultimately prevail in the case, but they must nevertheless exist. In N.D., Petitioner v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, E.F., Real Party in Interest the attorney was sanctioned $25,000. Unfortunately during the past few years I have seen or been involved in certain cases where an attorney on the other side in my view played the system too far in disregard of the actual facts, the evidence, and the law.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, real property partition, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, real property partition, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property breach of contract, and ownership and co-ownership disputes and litigation, and real property partition actions.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.