Metropolitan News-Enterprise


Monday, November 25, 2013


Page 1


Rule Does Not Allow Sanctions in Family Law Cases—C.A.


By a MetNews Staff Writer


An attorney ordered to pay $43,000 in sanctions for negligently hiring an attorney to assist her who was ineligible to practice does not have to pay the fine because the sanctions order was not authorized by the California Rules of Court, the Fourth District Court of Appeal ruled Friday.

Winifred Whitaker had hired fellow attorney Thomas W. Smith to act as her co-counsel in representing the wife in a divorce trial. Smith served as co-counsel even though he was ineligible to practice law at the time because he failed to comply with continuing legal education requirements.

San Diego Superior Court Judge William H. McAdam discovered Smith’s ineligibility on the last day of the trial, prompting him to declare a mistrial and invite the husband to bring a motion for sanctions.

The husband asked for sanctions in accordance with Family Code §271 and rule 2.30(b) of the California Rules of Court, alleging that Whitaker had violated the Rules of Professional Conduct.

McAdam denied sanctions under §271, but granted them under rule 2.30(b). He later ordered $43,000 in sanctions levied jointly and severally against both Whitaker and Smith.

Whitaker appealed the order, and the Court of Appeal reversed.

Writing for a unanimous court, Presiding Justice Judith McConnell of Div. One held that rule 2.30(b) does not authorize a court to impose sanctions for a violation of the Rules of Professional Conduct, or in a family law proceeding.

McConnell said that there were two reasons why rule 2.30(b) could not apply to Whitaker’s case. The first reason was that the Rules of Professional Conduct are not part of the California Rules of Court, but rather the Rules of the State Bar of California. The second reason was that the terms of rule 2.30(b) itself prevents its application in family law proceedings.

Citing its text, McConnell wrote that rule 2.30 allows monetary sanctions only for violations of “the rules in the California Rules of Court relating to general civil cases.” “Family law proceedings” are specifically exempt from the definition of “general civil case” in accordance with rule 1.6(4) from the same authority, McConnell explained.

Whitaker had also appealed McAdam’s order granting a mistrial, but McConnell wrote that such orders are not subject to appeal in accordance with Code of Civil Procedure §904.1.


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