271 SANCTIONS Ordered Against PRO PER ATTORNEY - Lawyers Are Some of the Most Conflicted Parties to Matrimonial Litigation

Do You Really Want the Most Aggressive Attorney for Your Divorce?

I have recently been reflecting on the fact that in my experience, lawyers who are parties to family law litigation behave far worse than most people suffering through the emotional ravages of relationship breakup. There is something about being a lawyer that threatens, and for some tends, to transform us into bullies and petty tyrants.

Lawyers should be even more mindful than the average litigant about taking bad faith positions. Courts hold attorneys to a higher standard, as they should. Not only are they more likely to be monetarily sanctioned for abusive behaviors, attorneys may also find themselves the focus of a State Bar investigation that ends with discipline including suspension or disbarment - an accountability unique to being a member of the legal profession. Hence, attorney pro se litigants have a lot more to lose than the average disputant. Aside from their ethical obligation to be act better than the rest as "officers of the court," there are practical reasons why they should exercise restraint.

There is a trend among our California appellate courts to fix boundaries and impose consequences for all divorce litigants who engage in uncooperative and dishonest behavior in marital and partnership dissolutions. This is a good thing: As I urge in my Blogs, the family law system for resolving disputes isn't working because the participants often approach them with so much blind rage and reactivity that their conduct overburdens the courts' resources and are too often manifested in attempts to beat the other person into the ground by increasing costs unnecessarily, by misrepresenting information, and by playing "hide the ball." We teach our children to self-regulate their behaviors, but sometimes we can't seem to get a grip on our own. We don't want judges to act as through they were our parents, but people often force them to.

Marriage of Greenberg (April 28, 2011) 194 Cal.App.4th 1095

As if to emphasize this phenomena, the Second Appellate District out of Santa Barbara issued its decision in Marriage of Greenberg on April 28, 2011. Self-represented Attorney Robert Greenberg was sanctioned in the amount of $2,800 in attorney fees to be paid to his former spouse by a Ventura County trial court when he took a meritless position to justify his stubborn refusal to pay a court ordered equalization payment to her. The trial court found that he was not only not credible in identifying his income in opposing a spousal support request, but declared that he'd engaged in perjury about his earnings and expenses. Moreover, the argument he urged to avoid paying the equalization payment was one that "should not have been an issue in the first place."

Accordingly, per Family Code section 271 sanctions were upheld as entirely appropriate and within the trial court's discretion. But that is not what is striking about the court's decision - and indeed $2,800 for uncooperative and dishonest behavior in family litigation is a very light slap.

Mr. Greenberg was not satisfied to accept his lumps and move on; instead, he filed a frivolous appeal from that order. Because Wife had not filed any brief in opposition to Husband's appeal Husband dodged a second monetary sanctions' award - but he did not dodge the bullet. BTW, Husband may have believed that because Wife could not afford to hire an appellate lawyer, given that it makes little sense to pay $10,000 to defend a $2,800 judgment, he would win in effect by default - he was sorely mistaken, however, since appellate courts don't accept arguments as valid simply because they are unopposed.

The Court concludes its opinion with the following:

"The record on appeal does not show that the trial court reported husband to the State Bar. We order the clerk of this court to send a copy of this opinion affirming the trial court's order to the State Bar. Whether husband should be disciplined is addressed to the judgment of the State Bar and we express no opinion thereon."

I suspect the author of that final sentence was smiling when they wrote it. Given the citations to Mr. Greenberg's tactics in the appellate record, it is hard to imagine that he will not be sanctioned by the Bar in the near future. Ironically, if the trial court's perjury findings have not previously been brought to the attention of the State Bar, Mr. Greenberg's insistence on pursuing a frivolous appeal guarantees they now will be. This is a wonderful example of an obsessed divorce litigant completely 'blowing themselves up.'

Justice Yegan, J. for the Second Appellate District begins this strongly worded opinion with the sentences: "Abraham Lincoln once said, 'He who represents himself has a fool for a client.' Here, the client is an attorney who represented himself in the trial court. He now represents himself on appeal. He is unschooled in the basics of appellate law, suggesting that Lincoln's observation applies on appeal. We understand that emotions run high in family law litigation and that this may cloud the judgment of a party. But that does not excuse the filing of a 'creative' (i.e., misleading or incomplete or inaccurate) income and expense declaration; or perjury,..., or the filing of a frivolous appeal." [Italics added].

The decision ends with this dry and understated observation: "Husband, a pro per attorney, suffers from a lack of objectivity." This fact, universal in differing degrees for those who are ending relationships, is at the core of why family litigation is so distressing and expensive for everyone involved, and in need of a major retrofit. But in the meantime, trial courts are repeatedly being given the green light to reign in parties who act like errant children so long as their due process rights are duly protected. Along with Marriage of Tharp, Marriage of Fong, and Marriage of Duris & Urbany, Marriage of Greenberg constitutes a warning to all family law litigants that abusive conduct will not be countenanced.

Also, Greenberg is important as good authority for the proposition that unfounded legal positions at the trial court level are sanctionable under FC §271. It should be cited to any judge where you encounter difficulties with the other side that sound familiar here, including advocating meritless claims.

Divorce trance is strong stuff. It causes most people to lose their minds for a time, before they can regain some balance and equanimity. Some high conflict litigants seem to never regain their poise (if they ever had it), and lawyers as parties to matrimonial matters seem to personify some of the coarsest aspects of our lower natures. One of the benefits of hiring a seasoned attorney, even if you think you can otherwise represent yourself, is that they can guide you to act in ways that are less destructive than what your impulses demand. Good lawyers don't just perform the mechanics of divorce, they help to set the tone. Conversely, seeking out "aggressive" lawyers whose advice mirrors or panders to your inner tension assures that your experience of the divorce and of the courts will be all the more unpleasant and unsatisfactory - oh, and expensive too.

Do yourself a favor - don't imagine that family court is your stage for expressing your upset and rage. Throw tantrums and the consequences may be more painful than a "time-out."

Or consider a different tact, if you wish and if your limbic "lizard" brain will allow it. Fortunately, we have other areas that we can access with just a smidgeon of mindfulness.

Thurman W. Arnold III, CFLS

A disclaimer:

Very few humans can behave impeccably every time, and I don't want to create an impression that I claim to be freed from all personal reactivity. My discussion is aimed at reminding you and I that we have two primary choices: 1) Get lost in the trance of resentment and within our busy minds, and so be persistently and stubbornly deprived of any real decision-making ability or 2) to increasingly gently and firmly restore and ground ourselves, and exercise the choice to suffer less rather than more by resisting the impulse to jump and scream when we feel threatened or angry. This latter possibility exists apart from all proclaimed external "causes" to our misery - and requires that we not respond in kind to the perceived insults and injustices that others may seek to inflict upon us.

Every day we enjoy a fresh chance to re-evaluate our direction and so to reset our conditioned negative momentums. Might succeeding one time in ten be better than the alternative?

When I am distressed but lucky, the mantra "stop..., clear..., reset" sometimes comes to my mind. And sometimes, hopefully more often than not, this works for me. Find your own mantra and save yourself from needless pain.

The opportunity for freedom resides within us, not without! Conversely stated, victims tend to choose to be.

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Author: Thurman Arnold