Tone deaf appellate counsel

This week's DJ had an article about Striking the Wrong Tone on appeal. A decision from 2/2 today here shows the perpetual need for such reminders. The decision remarks near the outset: "We also note that the invective the company’s appellate counsel launches at the arbitrator in its briefs and at oral argument is unsupported by the record, ostensibly unethical and, at a minimum, unbecoming an officer of the court." Then on page 16 there's a section titled "Rhetoric by appellate counsel." Uh oh....

• When we suggested to Innovation’s counsel during oral argument that this language may have exceeded the bounds of appropriate and zealous advocacy, counsel effectively “doubled down” by asserting that the arbitrator’s rejection of its position smacked of “desperation” and evinced a “read[iness] to retaliate” that ripened into orders that were “punish[ing]” and “dripping with malice.”
• “It is unfair, unethical, and immoral to falsely assail the character or official conduct of any [judicial] officer.” (In re Graves (1923) 64 Cal.App. 176, 181.) This statement was made nearly a century ago, but it is just as true today. California attorneys have a “duty . . . to . . . maintain the respect due to the courts of justice and judicial officers” (Bus. & Prof. Code, § 6068, subd. (b)), and “not [to] make a false statement of fact that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or judicial officer” (Rules Prof. Conduct, Rule 8.2(a)). Those duties of respect and honesty are violated when a lawyer accuses a judicial officer, and by extension a former judicial officer serving as a neutral, of committing criminal acts and impugns that arbitrator’s integrity based on nothing more than the arbitrator’s adverse rulings in that very case. At worst, such violations are worthy of contempt. (In re White (2004) 121 Cal.App.4th 1453, 1478.) At best, they are untrue to the promise in the oath taken by every new attorney in this state to “strive to conduct [themselves] at all times with dignity, courtesy, and integrity.” (Cal. Rules of Court, rule 9.7.) Ours is an honorable profession, and the imprecations Innovation’s counsel hurls at the arbitrator dishonor our profession and, for that reason, cannot pass without comment. (Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708, 710 [“If we ignore transgressions, we encourage transgressors.”].)