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Law Practice,
Ethics/Professional Responsibility,
California Courts of Appeal

Mar. 12, 2021

Incivility can be basis for reducing fees, panel rules

A 2nd District Court of Appeal panel affirmed a decision to cap an attorney's fees because of his incivility, in a case that should give aggressive litigators pause, ethics lawyers said Thursday.

A 2nd District Court of Appeal panel affirmed a decision to cap an attorney's fees because of his incivility, in a case that should give aggressive litigators pause, ethics lawyers said Thursday.

"Trial judges deciding motions for attorney fees properly may consider whether the attorney seeking the fee has become personally embroiled and has, therefore, over-litigated the case. Similarly, judges permissibly may consider whether an attorney's incivility in litigation has affected the litigation costs," Justice John S. Wiley wrote for a unanimous three-judge panel that included Presiding Justice Tricia Bigelow and Justice Elizabeth A. Grimes.

Ellen A. Pansky, of Pansky Markle Attorneys at Law, commented that judges are entitled to determine an award of attorney fees, but that the case "breaks new ground in finding that incivility is an aspect of 'attorney skill,' and in explicitly holding that 'civility is an ethical component of professionalism.'"

David S. Karton, a Los Angeles-based lawyer, sued Ari Design & Construction Inc., in Los Angeles County Superior Court in 2016. Karton hired the company to remodel his home but later discovered that the company was not properly licensed or insured. Karton and his wife said they paid more than $92,651 for work valued at $57,555.

Because of a state law regulating unlicensed contractors, the couple was entitled to all the money, the court found. Karton v. Ari Design & Construction Inc., 2021 DJDAR 2219 (Cal. App. 2nd Dist., filed May 17, 2019).

But issues arose during the attorney fee hearings. Superior Court Judge Elaine W. Mandel was assigned to handle the fee award. Karton represented himself and his wife together with Joey R. Abramson.

Karton initially requested more than $270,000 in attorney fees. Mandel ordered him to submit more information detailing his work. Mandel set a 10-page limit on the filing. Karton submitted 11 pages of text and more than 400 pages of supplemental briefing.

Karton clarified with the judge that exhibits were not included in the 10-page limit. But Mandel said Karton over litigated the matter and that the text went "vastly beyond what I anticipated."

The judge also accused Karton of using inflammatory language in filings, calling the opposing counsel frivolous. In oral argument on appeal, Karton also called the opposing counsel a liar, according to the 2nd District's opinion.

In an interview Thursday, Karton said he would be disappointed if the situation reflects negatively on Abramson and that he takes responsibility for the briefings. But he disagreed with the Court of Appeal's opinion. He said opposing counsel accused him of witness tampering and that he responded aggressively.

Karton said he never called the opposing counsel a liar. "I didn't use that term. Justice Wiley asked me if I was calling her a liar. And I said, yes. Because when somebody does not tell the truth, they're a liar. I didn't use the word liar. I was asked."

Karton said the case went to a discovery referee four times, which required many hours of work. He said he had expected that Superior Court Judge Nancy L. Newman, who handled the initial case, would hear the attorney fee motion.

"We drafted the brief with the assumption that Judge Newman would be the one reviewing it," who, according to Karton, had said that the individual defendants were not credible.

"How do I over litigate when the judge who heard the trial is saying that they lied in trial," Karton said.

By the time the case wound its way to the Court of Appeal, Karton sought $292,140 in fees.

In its opinion, the Court of Appeal said that attorney skill is a "traditional touchstone for deciding whether to adjust a lodestar ... Civility is an aspect of skill."

The court reasoned that excellent lawyers deserve higher fees and wrote that the Kartons "have come out swinging, apparently believing the best defense is a good offense."

The Court of Appeal also affirmed that the trial court was correct when it concluded that the Kartons were less than civil and reduced the attorney fees from about $300,000 to $90,000.

Carl I. S. Mueller at the Maloney Firm APC commented that it is generally difficult for a trial court or the State Bar to regulate civility of counsel outside the courtroom. The Karton decision gives weight to civility rules, he said.

"Allowing trial courts to hit attorneys where it counts -- their fees -- the Karton decision makes attorney civility a stand-alone basis on which a trial court can reduce a fee award," Mueller said. "This should give attorneys incentives to behave themselves and to explain the costs of incivility to clients that might encourage bad behavior."

Franklin R. Garfield, a lawyer in Los Angeles, said the case is unlikely to curb incivility among lawyers, which judges have complained about for decades.

"There is no question that incivility can lead to over-litigation which increases the cost of resolving a case exponentially. That is often the goal," Garfield said. "So long as lawyers can earn a handsome living by promoting themselves as 'aggressive litigators,' they will continue to do so."

Karton said he never received the $92,651 in damages plus the $10,000 penalty, since the corporation is now defunct. As far as the attorney fees go, Karton said that Ari Design & Construction put that responsibility on the company that posted the surety bond. He has not received the money.

#361819

Henrik Nilsson

State Bar/Legal Education
henrik_nilsson@dailyjournal.com

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