Monday, November 9, 2015
Justice Ashmann-Gerst Owes Apology to Lawyers She Berated
By ROGER M. GRACE
Maybe she was just having a bad day and found a need to take it out on someone.
Court of Appeal Justice Judith Ashmann-Gerst, of this district’s Div. Two, in an opinion filed last Tuesday and not certified for publication (but viewable on the Judicial Council website and elsewhere), slammed the lawyers in the case for a lack of civility. She was not on firm footing in doing so.
Here’s what she said in In re the Marriage of Lewis, B255900:
“[A]ttacks on the character of opposing counsel are not well received in this court, and pejorative adjectives do not persuade. We are compelled to echo the view of our colleagues in the Fourth Appellate District, who recently lamented that ‘[o]ur profession is rife with cynicism, awash in incivility’.”
She quotes from other cases on the need for civility and remarks:
“Impugning the character of opposing counsel is almost never appropriate and in this case was particularly embarrassing. We will not address these ad hominem attacks.”
From that, it appears that lawyers on one side or both engaged in unprofessional conduct in the form of slinging gratuitous insults at opposing counsel.
Ashmann-Gerst does not reveal who supposedly assailed whom—thus, quite unfairly, casting suspicion on all three lawyers in the case. The opinion reflects that the appellant was represented by Marc J. Poster of the Greines, Martin, Stein & Richland and the respondent’s lawyers were Patrick DeCarolis Jr. and Melissa R. Fresquez of Trope & DeCarolis.
Both sides responded, in e-mail exchanges, to my request for comments. Here’s what DeCarolis says:
“When I read the opinion I didn’t know what they were talking about. I re-read the briefs and I still don’t know. Both sides made comments about the positions of the other but I didn’t see a word about counsel in either brief. I’m just relieved the trial judge was affirmed and the case is finally over after five years!”
“Like Patrick DeCarolis, I can’t speculate who or what the court was referring to regarding ad hominem attacks on opposing counsel. The opinion doesn’t say.”
An examination of the briefs reveals that Ashmann-Gerst was off-base in her ridicule of the lawyers.
In the appellant’s opening brief, Poster—a leading appellate practitioner in a top appellate law firm—meticulously sets forth bases for the contention that Los Angeles Superior Court Judge Mark A. Juhas erred in divvying up assets in the marital estate of Steve and Donna Lewis. He argues that the findings are not supported by substantial evidence and that permanent spousal support—based on use of a mechanism designed for setting temporary support—was set at an unreasonably high level. The brief contains no reference to the respondent’s lawyers.
The respondent’s brief, signed by DeCarolis, argues that substantial evidence does support each of Juhas’s findings, pointing to portions of the record. It denominates certain statements in the appellant’s opening briefs as “misrepresentations,” pointing to matters in the record that, the brief asserts, refute the statements. The brief does not accuse Poster of being a “liar”; it merely challenges his portrayal of what the evidence shows.
The only passage that was unduly harsh, and regrettable, is this one, contained in the introduction:
“Steve does not believe that the rules apply to him. His appeal is just more of the same. In the realm of family law we have become accustomed to seeing many unhappy and dissatisfied family law litigants. However, there is an occasional litigant who takes his anger and greed beyond the bounds of reason. Steve is one of those people and this appeal is a perfect example. Throughout the dissolution Steve lied, misled Donna and the court, hid assets, failed to disclose important business transactions and did everything within his power to ensure that he would pay the least amount of support while also diverting and disposing of community assets (1 AA 218). This is not conjecture; it was part of the court’s findings in connection with its ruling on attorney fees (1 AA 218).”
The attack is aimed at Steve Lewis. (He’s referred to in both sides’ briefs with undue familiarity as “Steve,” but this is in consonance with the practice of all too many appellate court justices in family law cases where the parties share a surname.) By necessary implication, the brief accuses Poster of accommodating his client by maintaining an unmeritorious appeal. But to say that an allegation by a respondent’s lawyers that an appeal is unjustified constitutes an ad hominem attack on the appellant’s lawyer would be quite a stretch. The potshots taken in the respondent’s brief at “Steve” based upon his alleged greed and mendacity—while they could reasonably be viewed by an appellate justice as inappropriate—are plainly not assaults on Poster. Reminder: Ashmann-Gerst alleged “attacks on the character of opposing counsel.”
So, if the name-calling is not in the appellant’s opening brief or in the respondent’s brief, it must be contained in the reply brief. What vicious invectives did Poster employ?
He recites the issues raised by the appeal and observes:
“Respondent Donna Lewis would rather talk about other things. Taking the low road, she opens her brief with a smear campaign of irrelevant, nasty and false personal attacks on Steve. The Court should ignore Donna’s invective and decide the case on its merits….”
Inferentially, he is saying that DeCarolis and Fresquez included language in the opening brief, denigrating the appellant, that should have been left out. But to say that that by taking exception to the passage, quoted above, maligning “Steve,” Poster was “[i]mpugning the character of opposing counsel”—assuming Ashmann-Gerst’s remark was aimed at him—would be ludicrous.
And to say that attacks on opposing counsel by Poster and/or by DeCarolis and Fresquez “was particularly embarrassing” is claptrap. What Ashmann-Gerst should be embarrassed about is misusing an appellate opinion to besmirch the reputations of appellate counsel, wholly without justification.
Ashmann-Gerst’s premise—an uncontroversial one—is that there needs to be civility in connection with the appellate court process. But it is she, and only she, who displayed a lack of civility in Marriage of Lewis, through her abusive conduct toward counsel in the form of undeserved brickbats.
In her discussion of civility cases, Ashmann-Gerst says:
“ ‘[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.’ (People v. Chong (1999) 76 Cal.App.4th 232, 243.)…‘Indeed, unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct.’ (In re S.C. (2006) 138 Cal.App.4th 396, 412.)”
In Chong, the conduct of the defense lawyer in trial was directly in issue. The defendant contended on appeal that the judge committed prejudicial misconduct by reprimanding his lawyer in front of the jury. The opinion recites that she displayed “insolent and contemptuous conduct” during a trial, necessitating the judge’s admonitions. It says that she “accused the trial judge of being intellectually dishonest,” “accused the court of being a ‘bald-face li[ar],’ ” and launched into a “fit of diatribe” after being found in contempt. “In our collective 97 years in the legal profession,” the opinion remarks, “we have seldom seen such unprofessional, offensive and contemptuous conduct by an attorney in a court of law.”
In In re S.C., the opinion declares:
This is an appeal run amok. Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be.
In 76,235 words, rambling and ranting over the opening brief’s 202 pages, appellant’s counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to commonsense notions of effective appellate advocacy—for example, gratuitously and wrongly insulting her client’s daughter (the minor in this case) by, among other things, stating the girl’s developmental disabilities make her “more akin to broccoli” and belittling her complaints of sexual molestation by characterizing them as various “versions of her story, worthy of the Goosebumps series for children, with which to titillate her audience.”
The Fourth District opinion Ashmann-Gerst quotes from—which refers to the legal profession being “awash in incivility”—is Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267. It says:
The conduct of Timothy J. Donahue, [appellant’s] counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case—including a boilerplate accusation of misconduct against appellants’ counsel and a boilerplate request for sanctions based on a purportedly “frivolous” appeal—will not be countenanced. Donahue’s response to this court’s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue’s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.
The egregious misconduct in those cases warranted attention. There is nothing the lawyers did or said in Marriage of Lewis that bore any resemblance to the antics in the cases Ashmann-Gerst cited.
She, like all judges, and other government employees, is a public servant. Inherent in that status is the duty of demonstrating courtesy toward those with whom he or show has contact. Aside from the inherent obligation, there is an express duty on the part of judges, embodied in Canon 3B(4) of the Code of Judicial Ethics, to be “courteous” to “attorneys” and others “with whom the judge deals in an official capacity.”
In defiance of that responsibility, Ashmann-Gerst was insulting in her characterizations—and, it is clear, mischaracterizations—of the attorneys’ conduct in the case.
The falsity of her allegations brings into play Canon 1 which requires that a judge “should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity…of the judiciary is preserved.” There is, unmistakably, non-adherence to that canon where a trial judge or appellate court justice acts to publicly place an attorney in false light.
In a footnote in the same opinion, Ashmann-Gerst writes:
“Given the reputations of the law firms and lawyers representing the parties in this appeal, we are, to use a word in Steve’s opening brief, ‘befuddle[ed]’ by the quality of the legal work presented. Notwithstanding a certificate of compliance verifying the font size, Steve’s reply brief was sent back to counsel because it was too small to be read. And, notwithstanding well-established rules of appellate procedure, counsel offered incomplete, unfounded, and unintelligible arguments.”
Too small to be read? The statement is, incontrovertibly, untruthful. This does evince a disregard for the “integrity…of the judiciary” being “preserved.”
The brief is in 12-point type, although a court rule requires 13-point characters. If matter that’s set in 12 point type is “too small to be read,” then every paper filed in the Superior Court is unreadable. And you could not be reading this now…because it’s in 10.5-point type. The legal notices in the rear pages of the newspaper are in 6-point type, as legally required (except for notices of death, which are in 7-point type).
Even if Ashmann-Gerst had said that the reply brief was rejected based on non-conformity with the rule, the statement, though accurate, still would be improper. If Poster made a knowing misrepresentation to the court, even as to the point size of type, it would reflect adversely on his character. Yet, without knowing the facts, Ashmann-Gerst risked belittling an attorney for what was an innocent slip-up of a picayune nature.
And that’s just what it was. Poster relates in his e-mail:
“My secretary takes great pride in her work and explained to me that this had never happened before. Somehow in the process of converting the final draft of the brief that was originally prepared in WordPerfect (as you know, the court requires that a copy of briefs be submitted electronically in pdf format) the pdf program shrunk the page size slightly. As soon as the court clerk called this to our attention, my secretary apologized to her, corrected the error, and filed the required three hard copies of the brief in regulation format.”
The Court of Appeal docket does not reflect the brief having been “sent back to counsel,” as proclaimed by Ashmann-Gerst.
So far as there being “incomplete, unfounded, and unintelligible arguments,” Ashmann-Gerst fails to say which side presented such arguments…and it cannot be ascertained from looking at the briefs.
Although the opinion is not certified for publication, it is available electronically from various sources, as it will be in the years ahead. Ashmann-Gerst, if she has a conscience, will excise from the opinion her baseless barbs, and contact the attorneys in the case to apologize to them for her effrontery.
Copyright 2015, Metropolitan News Company