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Court of Appeal:
Lawyer May Be Sanctioned Based on Lying Through Silence
Nondisclosure of Recent Factual Development in Case That Materially Affects the Validity of Pending Motion Can Give Rise to Monetary Penalty, Opinion Declares; Outright Misrepresentation to Court Not Required
By a MetNews Staff Writer
A lawyer who failed to disclose a recent development in a case that materially affected the validity of his pending motion committed an ethical breach and was appropriately ordered to pay a $5,310 sanction for displaying a lack of candor, the Court of Appeal for this district has held, rejecting his contention that, because he hadn’t actually lied, the judge erred.
The opinion, filed Thursday, affirms an order by Santa Barbara Superior Court Judge Donna D. Geck. Justice Kenneth Yegan of Div. Six wrote the opinion.
The sanctioned attorney, John B. Richards, had also appealed Geck’s order finding him in contempt for the same conduct. Such an order, Yegan noted, is nonappealable, though it can be assailed in a writ proceeding; he said there was no inclination to construe the appeal as a writ petition.
Attorney’s Actions
Richards, concerned that the other side had not yet paid funds pursuant to a settlement agreement, made a motion to enforce the agreement. A hearing was set for June 7, 2019.
On June 3, Richards had received checks paying the judgment in full. Nonetheless, he appeared at the hearing on June 7; the opposing counsel, Harry A. Safarian, didn’t.
The transcript reflects this dialogue:
“THE COURT: Good morning. You’ve seen Court’s tentative?
“MR. RICHARDS: I have. Your Honor. I haven’t received word from opposing counsel. I don’t know—has there been any communication with the Court?
“THE COURT: There has not.”
Richards assured Geck that notice of the hearing had been emailed to Safarian.
Safarian Blamed
The judge proceeded to find Safarian in contempt for violating her April 17 order approving the settlement—as was necessary because it entailed the compromise of a minor’s claim—imposing sanctions against him in the amount of $4,630.30, and ordering him “to immediately disburse” the settlement funds, amounting to $50,001.
At an ex parte hearing on June 12, Safarian sought reconsideration, with the fact emerging that the funds had already been paid. Geck took the matter under submission, and two days later, vacated the order penalizing Safarian and issued an order to Richards to show cause why action should not be taken against him “based upon his lack of candor with the Court.”
His response, in writing, was that at the June 7 hearing, Geck “did not inquire to Plaintiffs’ Counsel whether the checks had been received, adding: “If it had done so, Plaintiffs’ Counsel would have replied in the affirmative.”
After a hearing, she imposed the $5,310 sanction on Richards, payable to Safarian, and found him in contempt. She explained:
“Mr. Richards had an ethical obligation to correct the court’s obvious misunderstanding (based on Richards’s moving papers) and advise the court that he had received payment on June 3, 2019, four days before the hearing. Mr. Richards knew that the settlement funds had been paid.… Instead, Mr. Richards remained silent in an effort to improperly obtain sanctions. California Rules of Professional Conduct. Rule 3.3 provides:
“(a) A lawyer shall not:
“(1) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer....”
Yegan’s Opinion
Yegan wrote:
“In his briefs on appeal, and again at oral argument, appellant protested that he made no false or misleading statements to the trial court because the judge never asked whether he had received the settlement checks. He contends that he was entitled to sanctions against respondent’s counsel, even if the settlement was paid, because he incurred fees to demand payment and to file the motion the enforce the settlement agreement. According to appellant, the trial court judge had a duty to ask whether the settlement had been paid, if that fact was important to the judge.”
The jurist responded:
“We wholeheartedly reject this reasoning. It was not the trial court’s duty to inquire whether any material fact had changed since appellant filed the motion. Instead, appellant’s duty of candor required him to inform the court that the settlement had been paid.”
1965 Opinion
He pointed to the California Supreme Court’s 1965 “By the Court” opinion in Grove v. State Bar of California. The high court issued a reprimand to a lawyer who had led a judge to believe that a matter was unopposed when it was not, failing to relate that opposing counsel had advised that he was unable to appear on the date of the hearing and had twice requested a continuance.
“The concealment of a request for a continuance misleads the judge as effectively as a false statement that there was no request,” the 1865 opinion says. “No distinction can therefore be drawn among concealment, half-truth, and false statement of fact.”
That applies to Richards’s conduct, Yegan said, setting forth:
“Counsel’s decision to not tell the trial court that he had received ‘word’ from opposing counsel, was a concealment and a ‘half-truth.’ This violates the attorney’s obligation as an officer of the court to be candid with the court. This was intended to secure an advantage and it worked, temporarily. Counsel had received the settlement checks. This is not an insignificant fact. Every trial court hearing a similar motion would want to be apprised of this development.”
The opinion provides notice to Richards that the matter is being referred to the State Bar for possible disciplinary action.
The case is Levine v. Berschneider, 2020 S.O.S. 5156.
Richards, who represented himself on appeal, did not respond to a request for comment.
Safarian was joined by Christina S. Karayan of his Glendale law firm in urging affirmance
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