June 1, 2012
Lunch Break Appeal Falls Flat
Another story about an attorney who should have hired counsel rather than doing his divorce pro se comes from the web page of the June 2012 California Bar Journal:
[An attorney] for one year, stayed, placed on two years of probation with an actual six-month suspension and he was ordered to take the MPRE within one year and comply with rule 9.20 of the California Rules of Court. The order took effect Jan.12, 2012.
State Bar Court Judge Richard A. Platel found that [the attorney] committed misconduct in his divorce proceedings and said his testimony during a four-day trial was unbelievable. [He] was declared a vexatious litigant by a superior court judge eight years after the divorce proceedings began, and Platel said that his actions caused his ex-wife to spend an additional $100,000 to defend her side of the action.
Although [he] stipulated to the appointment of a special master in the divorce case, he claimed he had not done so after the special master issued a report that was unfavorable to him. He also filed an appeal from court order that he claimed had been issued before any orders were entered. Platel said [the attorney] thus intentionally made false statements and sought to mislead judges “for the corrupt purpose of avoiding unfavorable rulings and staying the superior court proceeding in order to deprive that court of jurisdiction.”
The special master had found that [the attorney] failed to comply with his ex-wife’s discovery requests. The court ordered [him] to pay sanctions of $41,000, later reducing that amount by $500. He had not produced tax returns for his real estate business or had provided documents that were disorganized and copied over other documents.
During a lunch break in the family law action, [the attorney] appealed all pending orders so that he could then “take the position that the Superior Court had lost jurisdiction to conclude the hearing and that further trial court proceedings should be stayed.” The court continued the hearing anyway.
[The attorney] unsuccessfully appealed the trial court’s rulings. The court of appeal found the appeal frivolous, called his lunch break appeal a “sophomoric stunt” and ordered O’Brien to pay his former wife sanctions of $23,712. The court ordered that its opinion be forwarded to the State Bar for discipline. [He] sought review of the appellate court’s findings with the Supreme Court, which denied his request.
As part of a custody case, the family court also ordered [him] to pay retroactive child support ranging from $1,118 a month to $1,285 a month. [The attorney], however, continued to pay $738 per month and his ex-wife was forced to file motions for contempt. [He] settled with her before any hearings were held.
In the State Bar proceedings, [he] claimed the trial court’s orders did not require him to pay anything, but only set forth amounts owed. He calculated a different, lower figure that he said represented the “just” amount of child support and that he was “finding the truth” regarding his child support obligations. “In sum,” Platel wrote, [the attorney] “argues that he did not have to comply with the court’s child support order, because his version of the circumstances was the ‘truth’ and his method of calculating child support is‘just.’ Such assertions are without rational basis and, thus, are rejected by this court.”
Platel found that [the attorney] failed to obey a court order and made false statements to the court “for corrupt motives.”
“Throughout this disciplinary proceeding,” Platel wrote, [his] “testimony has changed and his version of the ‘truth’ becomes whatever best supports his claim at the moment, irrespective of any facts with which he is confronted.” He said [the attorney] significantly harmed both his ex-wife and the courts by filing frivolous appeals and motions. [He] also “showed absolutely no remorse for his actions, other than perhaps a lack of judgment for filing his ‘lunch break appeal,’”Platel wrote.
Platel found that [the attorney] had no prior discipline record and he cooperated during the State Bar Court proceedings.
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