A lawyer can be frustrated and embarrassed by losing in court, but a recent California Court of Appeal decision underscores one thing a lawyer must not do when rulings go badly: accuse the trial judge of bias without evidence.
In A Company Hungary KFT v. Bespalov, the Court of Appeal did more than reject arguments that a trial judge was biased. It sanctioned the attorney who made those accusations, Jeremiah Reynolds, ordering him to pay a $1,000 fine for contempt of court.
The justices emphasized their displeasure by ordering the publication of its opinion, so it also serves as a warning to other lawyers.
The underlying case involved Sergei and Marina Bespalov, who appealed a $5.9 million judgment entered against them. The Court of Appeal resolved that appeal separately in an unpublished opinion. The published opinion dealt with a very different issue: the conduct of Reynolds, the attorney who represented the Bespalovs on appeal.
The appellate brief filed by Reynolds accused the trial court of “manifold and prejudicial legal errors and unchecked bias,” and said the decision could not have been reached without the trial judge having “two thumbs firmly on the scale” for the opposing side.
The brief Reynolds filed described the $5.9 million judgment as a “travesty.” It accused the trial court of showing “unending deference” to the opposing party, making “a mockery of due process,” and employing an “unabashed double standard.” The brief continued in this vein; the Court of Appeal identified 26 separate bias accusations.
However, as the justices pointed out, Reynolds presented no evidence that the trial judge was biased. Reynolds used his accusations only as seasoning to spice up his advocacy.
When the appellate court issued an order requiring him to explain why he should not be held in contempt or sanctioned for attacking the integrity of the trial court without evidentiary support, Reynolds apologized for what he called “rhetorical excesses” and acknowledged that the language was unnecessary.
But he then maintained that his statements were reasonable characterizations and inferences based on the trial court’s rulings. That explanation did not satisfy the appellate court.
The justices noted that lawyers are entitled – and expected – to argue forcefully that a trial judge got the law or facts wrong, and lawyers can criticize rulings “with vim and vigor.” But they cannot simply declare that a series of unfavorable decisions is proof that the judge was biased.
That distinction is particularly important in appellate practice. An appeal exists precisely because trial courts sometimes make mistakes. The proper response to an unfavorable ruling is to identify the legal or factual error and explain why the ruling should be reversed, not to attack the judge’s integrity without evidence.
Attempting another defense, Reynolds argued that his statements were not presented as independent facts, but rather as his interpretation of the record. The court was not persuaded.
Among other things, the justices pointed out that the accusations appeared in headings throughout the appellate brief. There was little reason to place allegations of bias in headings if they were not intended to convey factual assertions, they said.
Reynolds eventually admitted during oral argument that there was no evidence in the record supporting his claims of bias. He explained that he had looked at the “cumulative effect” of rulings that went against his clients and had interpreted that as evidence of bias. The justices rejected this reasoning as well. Judicial rulings against a party might prejudice the party’s interests without being caused by judicial bias; the two are distinct.
He apologized several times, both in writing and at oral argument, but his apologies were repeatedly followed by attempts to defend the very conduct for which he was apologizing. The Court of Appeal pointed out that a straightforward and unqualified apology can carry significant weight when misconduct has occurred.
The justices noted that lawyers have a duty to maintain the respect due to courts and judicial officers. This has been California law since its original Civil Code went into effect 154 years ago. Lawyers, also by statute, certify in signing papers submitted to the court that their claims have evidentiary support.
The court found Reynolds in contempt for his baseless accusation of judicial bias. It imposed a $1,000 fine and ordered that copies of its opinion be sent to the State Bar. Reynolds by statute also is obligated to self-report to the State Bar the imposition of monetary sanctions (there is an exception for sanctions of less than $1,000, so the Court can be seen as having decided on the sanction amount for the purpose of triggering this self-reporting obligation, further underlining the Court’s attitude toward his kind of conduct).
For lawyers, the practical lesson to be drawn from this case is straightforward: attack the ruling, not the judge, unless the record actually supports the accusation. For clients, the practical lesson is to expect your lawyer always to be professional in dealing with a court.
By Robert L. Kehr