Is All Fair When Love Turns to War? Ethics Rules Say No

Some narrow issues were raised in the recent decision from the Fourth District of Court of Appeal, Division One, titled Shenefield v. Shenefield (case no. D078643, filed 2/24/22) and a bigger one as well.

The case involved a litigant in a marital dissolution matter who attached the confidential, court-ordered psychological evaluation undertaken during his spouse’s previous marital dissolution to a pleading filed by his lawyer. The spouse sought sanctions for violations of Family Code sections 3111, subdivision (d) and 3025.5, for unwarranted disclosure of the confidential custody
evaluation. Following trial, the Court issued sanctions against the litigant in the amount
of $10,000 and the litigant’s lawyer in the amount of $15,000. The trial court found that the litigant’s attorney was a ‘seasoned’ attorney who should have been aware of the Family Code statutes. She was reckless in filing the confidential and that she intended for the Court to rely on the confidential information from the prior, unrelated case. The lawyer challenged the sanction, arguing, among other things, that she was not a ‘party’ within the meaning of section 3111(d)(2). The Court of Appeal upheld the sanction, finding that California Rules of Court, rule 1.6(15), defines a “[p]arty” as “a person appearing in an action,” and it also notes that “party” “includes the party attorney of record.” The Court of Appeal also found no merit in the lawyer’s other arguments, that she was not afforded due process and that the opposing spouse had a duty to provide her the ‘safe harbor’ provided by Code of Civil Procedure section 128.7(c)(1) before moving for the sanction.

Good to know. But the bigger issue is highlighted in the part of the opinion that discusses an important piece of evidence at trial, a recording of a meeting between the litigants, Mark and Jennifer, and husband’s counsel. Jennifer did not have counsel.

On September 13, 2017, Mark pled guilty to violating Penal Code section 243, subdivision (e)(1), misdemeanor battery on a spouse. The Court issued a criminal protective order against Mark. The order contained the same terms as the restraining order, prohibiting Mark from contacting Jennifer or their child other than peacefully for visitation, and it authorized Jennifer to record any violations. Kovtun was Mark’s attorney of record in the criminal case. On September 28, 2017, Jennifer attended a meeting at Kovtun’s office with Mark and Kovtun. Jennifer recorded the meeting. During the course of the meeting, Kovtun told Jennifer she was a liar and a bad and unfit mother who was harmful to their child. When Jennifer said if Kovtun were not there, Mark would probably be beating her, Kovtun responded, “You know what? I would be.” Kovtun called Jennifer “nuts,” said Jennifer was “out of [her] mind,” commented that living with Jennifer was like dealing with a lunatic, and called Jennifer crazy. Mark berated Jennifer, telling her that he was going to take their child away and get full custody, directing Jennifer to stop crying, and admonishing her that if she loved him, Jennifer would sign a custody agreement that would give Mark 50 percent custody. Kovtun repeatedly supported Mark’s statements, commenting, “Yeah.” As a consequence of the September 28, 2017 meeting, Mark pled guilty to violating a court order (Pen. Code, § 166, subd. (c)(1)) in October 2018.

Shenefield, slip opinion filed 2/25/22 at page 23.

The trial court found that the recording did not violate Penal Code section 632 because it was authorized by the September 23, 2017, protective order. It relied on the recording to conclude that the lawyer was a seasoned family law lawyer and that she acted recklessly in allowing the confidential information from the prior custody evaluation to be filed. The Court of Appeal upheld those determinations.

Family law has always been difficult. Trends in society, the ongoing destruction of personal norms of appropriate behavior, the erosion of social trust, and the increased competition between lawyers for clients have made it more difficult. The lawyer-as-hired-gun meme still has currency, and it is often emphasized by lawyers themselves in their advertising, based on the idea that clients want aggressive lawyers. Many of my clients who are family law lawyers tell me that family law practice is uglier now than they ever seen it.

The ethical rules point in a different direction. Preamble 5 to the ABA Model Rules states that a “lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.” California Rule of Professional Conduct 1.2.1 forbids a lawyer from counseling or assisting “a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.” Business and Professions Code section 6068(f) says that it is the duty of an attorney to “advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he or she is charged.” Subsection (g) says that a lawyer has a duty to “not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.” California Rule of Professional Conduct 4.3 specifically addresses communication with unrepresented parties and states that a lawyer may not take advantage of an unrepresented party to stating or implying that he lawyer is disinterested and may not give an unrepresented party legal advice, where their interests conflict with the client, except the advice to obtain counsel. While not a binding rule, the State Bar of California Civility Guidelines state that “in family law proceedings an attorney should seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere, and keep the best interest of the children in mind. For example, a. An attorney should discourage and should not abet vindictive conduct. b. An attorney should treat all participants with courtesy and respect in order to minimize the emotional intensity of a family dispute.” Guideline 19.

No, all is not fair in love, war or the practice of law. They all have ethical rules that must be followed if we are to live in a world not governed by brute force.

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