Mediation Message No. 109



A too common refrain or complaint is that attorneys don’t keep their promises to opposing counsel, such as in calendaring matters. While there is no specific ethical rule requiring that such promises be kept, it can be extrapolated from Bryant v. State Bar (1942) 21 Cal.2d 285 and Grove v. State Bar (1965) 63 Cal.2d 312 that the obligation exists in certain situations.

In Bryant, the attorney was disciplined for violating his agreement not to commence any action on a note and chattel mortgage until opposing counsel had returned from out-of-town. Bryant claimed that he had promised only that he would not begin any action without notifying opposing counsel’s office, which he did and got no response. In finding opposing counsel’s version of the facts more credible, the Supreme Court found that Bryant had “violated his word given to another attorney” and, in so doing, took advantage of that attorney. (Id. at pp. 293-294; [It should be noted that no existing ethical rule prohibits the breach of such a promise although that fact should not stop counsel from bringing Bryant to the trial court’s attention.].)

In Grove, on the day of a calendared motion in a family law matter in Hayward, California, the husband’s attorney called Grove’s secretary (Grove was representing the wife) to ask for a week’s continuance because he could not get a plane out of Los Angeles in time for the hearing. The secretary gave this information to Grove who did not advise the court of the call. As a result, the judge treated the cause as a default matter.

It was found that Grove’s failure to advise the court of opposing counsel’s request violated both Business and Professions Code sections 6068, subdivision (d) (attorneys must “never … seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law”) and 6106 (moral turpitude). “The concealment of a request for a continuance misleads the judge as effectively as a false statement that there was no request. No distinction can therefore be drawn among concealment, half-truth, and false statement of fact.” (Id. at p. 315; in this instance, unlike in Bryant, the conduct was disciplinable because it involved a misrepresentation to the court.)

MDM’s observation: The practice of law is difficult enough without having to deal with uncompromising or obstreperous opposing counsel. Give in on the matters that are mundane and relatively unimportant; save the fireworks and hubris for issues that go to the heart of the case.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, April 2015

Leave a comment