Court Of Appeal Admonishes Counsel With Coke

Allen Matkins
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Allen Matkins

Usually, appellate decisions provide guidance to future litigants on how the law will be interpreted and applied. A recent published opinion by the Fourth District Court of Appeal, however, provides guidance to lawyers on how they should behave before the courts. The opinion's introductory paragraph tells the story:

These contempt proceedings arise from a petition for rehearing filed by Attorney Paul Mahoney on behalf of his client Salsbury Engineering Inc., in which he impugned the integrity of both the trial court and this court. In that petition, he cited not a single statute or opinion and made no attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one. Instead he filed nine pages of text that more closely resembled a rant than a petition.

In re Mahoney, 2021 Cal. App. LEXIS 492, *1. The Court found Attorney Mahoney in direct contempt, fined him $2,000 and directed the clerk to forward the judgment of contempt to the California State Bar.

In order to emphasize the long historical obligation of lawyers not to impugn the integrity of the court, the opinion quotes Sir Edward Coke: "De fide et officio judicis non recipitur question [sic]1 sed de scientia, sive sit error juris, sive facti". Sir Coke (pronounced "cook") was Elizabethan/Jacobean politician, barrister and jurist. Interestingly, I could find this particular quotation in only one other American opinion, a 1977 decision by the New Mexico Court of Appeals, Phillips v. United Service Automobile Ass'n, 91 N.M. 325, 573 P.2d 680 (1977). What did Coke mean? My translation (which is not quite literal) is: "It is not allowed to question either the good faith or office of the judge, but [it is permitted to question] the judge's knowledge, either of the law or the facts."

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1. "Question" should be "quaestio". "Question" in Latin is a singular, feminine noun in the nominative/vocative case meaning a complaint. "Quaestio" is also a singular, feminine noun in the nominative/vocative case meaning a question or subject of investigation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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