When Overzealous Advocacy Becomes Contempt.
The conventional wisdom that there should be no way to lose a settlement conference is tested in Kevin J. Moore v. Superior Court of Orange County, G058609 (4/3 11/16/20) (Goethals, Bedsworth, Thompson). The facts of the underlying case are of little importance, because it was the conduct of attorney Moore at a mandatory settlement conference in OCSC that was at issue:
"While representing a client at a mandatory settlement conference (MSC) before a temporary judge, petitioner Kevin Moore was rude and unprofessional. Among other things, Moore (1) persistently yelled at and interrupted other participants; (2) accused opposing counsel of lying while providing no evidence to support his accusation; (3) refused to engage in settlement discussions; and (4) effectively prevented the settlement officer from invoking the aid and authority of the supervising judge by asserting this would unlawfully divulge settlement information. To make matters worse, Moore later acknowledged that his contemptuous behavior was the result of a tactical decision he had made to act in such a manner in advance of the MSC. After a hearing, respondent court convicted Moore of four counts of civil contempt, imposed a $900 fine for each count ($3,600 total), and ordered the payment of attorney fees and costs to the opposing party. (See Code Civ. Proc., § 1209 et seq.)"
As Justice Goethals explains, Moore did not get whacked for zealous advocacy. Indeed, a "failure to yield" at a settlement conference does not amount to contempt. Rather, it was rude and obstreperous conduct that got Moore in trouble. Among other things, the Court was not pleased that Moore had called opposing counsel a liar without explanation, and that he had told opposing counsel, "you could be dead," and that he had apparently used his behavior as a tactic: "Moore’s petition for writ of review, which brings the matter to this court, clarified his state of mind at the outset of the MSC: 'At the MSC, [Moore] employed a tactic in representing his client that included raising his voice and accusing [opposing counsel] of making false statements, which [Moore] believed to be true.' (Italics added.)"
In the Court of Appeal, attorney Moore succeeded in eliminating three of the charges, and reducing the fine to $900. Each party had to bear its own fees and costs. The Court consolidated and reduced the four counts into "a single count for Moore’s bad faith participation and obstreperous misconduct at the settlement conference." Perhaps this is a bittersweet victory, for Justice Goethals concludes, "Though Moore’s petition is largely successful, that success should in no way be construed as an endorsement by this court of his behavior." And the clerk of the court is directed to provide a copy of the opinion to the State Bar.
The opinion is well worth reading, because among other things, it describes the steps that must be taken to successfully issue a contempt order, and what was done correctly and incorrectly below.
COMMENT: Note that the conduct that was found to be contemptuous was in front of a temporary judge. Temporary judges in Orange County typically hold the MSCs outside the courtroom, often in the third floor cafeteria. Today, the MSCs are being held remotely via Zoom and other platforms. (And perhaps social distancing may actually be leading to more civil behavior). Therefore, the temporary judge often does not have easy access to a reporter and to a courtroom, where the TJ could make a record of direct contempt and summarily issue a contempt order. Instead, Moore was a case of "indirect contempt" that did not occur in the courtroom. "Although the settlement officer was acting as a temporary judge at the settlement conference," explains Justice Goethals, "he did not pursue summary contempt proceedings (we express no opinion on whether he should or could have done so)." Nevertheless, the case does show that when proper contempt procedures are followed, a temporary judge and the judicial process can be protected from contumacious behavior with an "indirect contempt" proceeding.
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