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Court of Appeal:
Lawyer Is a ‘Party’ for Purpose of Family Code Sanction
By a MetNews Staff Writer
An attorney may be sanctioned for revealing the content of a confidential court-ordered custody evaluation in violation of Family Code §3111 even though the statute refers only to a disclosure by a party, Div. One of the Fourth District Court of Appeal has held,
Acting Presiding Justice Richard D. Huffman authored the opinion, filed Friday.
Sec. 3111(d) provides:
“If the court determines that an unwarranted disclosure of a written confidential report has been made, the court may impose a monetary sanction against the disclosing party.”
It goes on to say:
“The sanction shall be in an amount sufficient to deter repetition of the conduct, and may include reasonable attorney’s fees, costs incurred, or both, unless the court finds that the disclosing party acted with substantial justification or that other circumstances make the imposition of the sanction unjust….”
$15,000 Sanction
San Diego attorney Karolyn E. Kovtun argued on appeal that a $15,000 sanction was improperly imposed on her because she acted as an attorney in a case, and was not a “party.” (The client was ordered to pay $10,000 based on the disclosure in pleadings of an evaluation from his wife’s previous divorce.)
Rejecting Kovtun’s contention, Huffman said:
“The statute states the party against whom the court may appropriately impose sanction is the ‘disclosing party.’…The modifying word ‘disclosing’ describes which parties are included in the statute: any person who discloses the confidential information when doing so is unwarranted. The plain language of the statute does not limit its application to named litigants; attorneys can make unwarranted disclosures of the confidential information.”
Huffman went on to observe:
“If section 3111…applied only to the parties to litigation, a party to the dispute could simply share the information with counsel for the purpose of disclosing it, and the attorney could then properly release confidential information from the previous dissolution matter without consequence. This outcome is inconsistent with the intended purpose of the sanctions because it would discourage honesty during the custody evaluation, making it more difficult for the court to determine the best interests of the child.”
The jurist pointed to California Rules of Court, rule 5.2(b)(6), applicable to family law proceedings, which says:
“Any designation of a party encompasses the party’s attorney of record….”
He also noted rule 1.6(15), applicable to all courts, which provides that “any… designation of a party includes the party’s attorney of record.”
RFO Not Filed
Kovtun also argued that her client’s wife, Jennifer Shenefield, in seeking sanctions from her and Mark Shenefield, failed to file a request for order (“RFO”) for sanctions, in violation of a court rule. Huffman responded that Jennifer Shenefield did not seek a sanction pursuant to a rule of court, but under a specific statute, explaining:
“[T]he text of Family Code section 3111, subdivision (d) does not require a separate RFO or otherwise mandate a noticed motion. Family Code section 3111 does not detail any specific procedural requirements.”
The notice she received—included in the wife’s trial brief—was sufficient to satisfy due process, Huffman declared.
In ruling on the sanction motion, the judge considered the transcript of a conversation at Kovtun’s office when she met with the spouses, secretly recorded by the wife. Kovtun argued that admission of the transcript was barred by Penal Code §632(d) which says:
“Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.”
Huffman wrote that Kovtun was aware that under protective orders the wife had obtained, she was privileged to record conversations with the husband in order to prove violations of the orders, commenting that “it was not objectively reasonable for Kovtun to believe the conversation she participated in could not be recorded.”
He continued:
“Absent such an expectation, the communication could not be characterized as confidential, and it therefore does not fall within the restrictions detailed in Penal Code section 632.
“Kovtun emphasizes the language in Penal Code section 632 that prohibits the use of evidence obtained through the recording of a confidential communication in violation of Penal Code section 632 in any judicial proceeding.
“However, Kovtun’s emphasis is misplaced. The statute only prohibits the admission of confidential communications in judicial proceedings, and Kovtun fails to explain why the communication was confidential, i.e., why there was an objectively reasonable expectation that the conversation was not being recorded.”
The case is Shenefield v. Shenefield; 2022 S.O.S. 858.
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