Saturday, June 27, 2009

Case Law Development: Rude Behavior of Attorney Tipped the Scales in Favor of Protective Order Against Client

In a good example of the lesson that rude or aggressive lawyering is not effective advocacy, a California

trial court issued a protective order based on the aggressive conduct of examination by the defendant’s attorney.  While the California Court of Appeals reversed, the case nonetheless is a good reminder that respectful treatment of opposing parties is not bad advocacy.  The case involved an 83‑year‑old father who had filed a request for a protective order against his 56-year-old daughter, alleging that she had hit him, emotionally abused him, and caused caregivers for his 88-year-old wife to quit. 

The court of appeals rejected the daughter’s interpretation of the Elder Abuse and Dependent Adult Civil Protection Act as requiring a risk of future abuse and concluded that a protective order under the Elder Abuse Act could issue based on past actions alone.  However, the court nonetheless found that the trial court in this action had erred in issuing the protective order based on the attorney’s conduct at the hearing. The court of appeals noted “the trial court’s express acknowledgement that the attorney’s questioning and [the daughter’s] failure to intervene were “the straw that made the difference” in reaching its conclusion.”  However, the court pointed out that attorneys, rather than clients, are responsible for the conduct of examination.  “To require a client to correct his or her counsel’s behavior during the examination of a witness in order to avoid inferences as to the client’s prior actions outside the courtroom would go against all these accepted principles of the attorney‑client relationship.” 

Gdowski v. Gdowski, (Cal. Ct. App. 4th District June 23, 2009)

Opinion online (last visited June 27, 2009 bgf)

http://lawprofessors.typepad.com/family_law/2009/06/case-law-development-rude-behavior-of-attorney-tipped-the-scales-in-favor-of-protective-order-agains.html

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