Archive for the ‘Ethics’ Category

Hold Everything — the Notice of Unavailability does not freeze the trial court — and may not be filed in the appellate court

Monday, November 26th, 2007

In Tenderloin Housing Clinic v. Sparks, 8 Cal. App. 4th 299 (1992), the court of appeal upheld sanctions against an attorney for scheduling depositions and court hearings after being informed that opposing counsel would be unavailable during that time frame.  As the court explained,

“it is widely held that ‘An attorney has an obligation not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.’ … The rule set out above makes it obvious that even if a legal step taken or legal procedure pursued has justification in law, the timing thereof may be oppressive and may constitute harassment if it unjustifiably neglects or ignores the legitimate interest of a fellow attorney.”

Since this decision, counsel have made it a practice to serve and file a Notice of Unavailability to put opposing counsel on notice not to schedule events in the case during a particular time period.

Last week, however, the court of appeal made clear that this notice does not bar the trial court from acting during the period of unavailability.  (Carl v. Superior Court)  As the court of appeal explained: “To the extent this practice attempts to put control of the court’s calendar in the hands of counsel–as opposed to the judiciary–it is an impermissible infringement of the court’s inherent powers.”

The appellate court expressed a measure of exhasperation with the Notice of Unavailability practice:

“We explain our reasons for summarily denying the petition in part because the common practice of filing a “notice of unavailability” in the superior court now permeates the appellate court system. We receive them on a regular basis and at all times during the appeal process: they come before the record is filed, they come while the matter is being briefed, and they have even come after a matter has been submitted for decision.”

The court concluded by explaining that the Notice of Unavailability has no place in the court of appeal, and that it is not a “fileable document” under the rules of court. 

Ghost Writing

Wednesday, October 31st, 2007

Halloween seems the appropriate time to discuss the ethics of “ghost writing” legal pleadings.  Greg May over at California Blog of Appeal has a post on the issue of ghost writing pleadings for pro se litigants.  But what about ghost writing for other attorneys and organizations?

Recently a colleague came to me seeking advice on whether it violates any rules to file a ghost-written amicus brief — that is, a brief actually written by the attorney for the party, but which would be filed in the name of an amicus organization over the signature of some other attorney.

While the California rules do not specifically address the issue, the United States Supreme Court amended their rules some time ago to require amici to disclose whether any of the parties wrote any portion of the amicus brief (Rule 37.6).

I do not think there is any concern with a party discussing legal issues with potential amici, or even recruiting amici to submit briefs to the court on particular legal issues.  In the end, however, that brief should reflect the legal and policy views of the amici. 

If we want the courts to pay attention to amicus briefs (and that is a different subject altogether), we should take care to ensure that the court has confidence that it is actually receiving third-party input rather than an extended brief of the parties to the action.