Second District, Division 2 Reverses $3,387.50 Sanctions Award Against Attorneys.
Under various discovery statutes, the trial court has discretion to award discovery sanctions jointly and severally against losing litigant and/or their attorneys. However, attorneys have another defense in their quiver—the “my client made me do it” defense.
The Court of Appeal is Manzanares v. Bertolino (Marcus, Watanabe, Snyder & Dave, LLP), Case No. B211652 (2d Dist., Div. 2 Nov. 24, 2009) (unpublished) reversed a $3,387.50 discovery sanction awarded against attorneys as well as their clients. Reason: under Ghanooni v. Super Shuttle, 20 Cal.App.4th 256, 261 (1993), an attorney can avoid sanctions if he advised the client to not engage in the conduct resulting in the sanctions but the client persisted (making client solely responsible for the sanctionable conduct). Attorneys on appeal were successful, because they did submit evidence in the trial court—unrebutted evidence—demonstrating client was solely responsible.
BLOG UNDERVIEW—Attorneys need to be careful on using this discovery sanctions “defense,” because it likely implicates privileged conversations and may create a conflict in interest with the client that may want to be avoided, depending on the circumstances of course.