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December 31, 2019 Practice Points

Sanctioning Abuse: Bad Attorney Behavior Risks Client Sanctions

Attorneys who behave badly put their clients at risks of substantive sanctions, including dismissal.

By Joseph V. Schaeffer

What does it take for a mundane bad-faith insurance dispute to become national news? The answer, apparently, is for plaintiffs’ counsel to abuse defense counsel in language so profane it would have made George Carlin blush—thus prompting defense counsel to file an emergency ex parte application with the court.

The setting for this drama—Baker et al. v. Allstate Ins. Co. et al., No. 2:19-cv-08024 (C.D. Cal. filed Aug. 13, 2019)—has gathered attention mostly for the significant sanctions that are almost certain to befall plaintiffs’ counsel. Lost in the discussion, however, is the potentially significant impact on the plaintiffs.

The defendants’ application not only sought relief against plaintiffs’ counsel, it sought the dismissal of the action itself. Although rare, dismissal is an appropriate remedy for abusive litigation practices. See Halsco Eng’g Co. v. Castle, 843 F.2d 376, 380 (9th Cir. 1988). Even though a party may be unaware of his or her counsel’s misconduct, “[t]he established principle is that the faults and defaults of the attorney may be imputed to, and their consequences visited upon, his or her client.” W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). And, in fact, the presiding judge over the Baker case announced at a hearing on the defendants’ application that he had been inclined to dismiss the case for plaintiffs’ counsel’s misconduct. The plaintiffs only saved their case by immediately retaining new counsel upon learning of their former counsel’s misconduct.

Baker thus offers an underappreciated lesson that professionalism and civility are more than just matters of ethics and decency. At the extremes, how counsel conduct themselves in a case bleeds over into how their cases are resolved.

Joseph V. Schaeffer is a member with the law firm of Spilman Thomas & Battle, PLLC.

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