November 30, 2021

Volume XI, Number 334

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November 30, 2021

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November 29, 2021

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Court Of Appeal Admonishes Counsel With Coke

Usually, appellate decisions provide guidance to future litigants on how the law will be interpreted and applied.  A recently 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." 

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.  

© 2010-2021 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XI, Number 169
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Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
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Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

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