New Appellate Case: Anke v. Yeager
There is a new appellate which came down from the Second Appellate District of the California Court of Appeal on February 4, 2019. The case is Anka v. Yeager and can be found here https://law.justia.com/cases/california/court-of-appeal/2019/b281760.html.
You know it’s going to go badly for the attorney in the case when you read this in the opening paragraphs quoting the oath of admission required to practice law described in California Rules of Court, rule 9.7:
“These cautions are designed to remind counsel that when in the heat of a contentious trial, counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands. Unfortunately, that did not happen here.” [Emphasis added.]
Sanctions for revealing the contents of a custody evaluation in deposition questions
In Anka v. Yeager, an attorney asked a question during a deposition as part of a child custody dispute about the contents of a custody evaluation. The displeased trial court ordered $50,000 in sanctions against the attorney and party under Family Code sections 3025.5 and 3111. The trial court found that the attorney’s asking questions about the custody evaluation in the presence of the court reporter and videographer at the deposition constituted an unjustified, malicious and reckless disclosure of the contents of the custody evaluation.
When the sanctioned attorney appealed. She argued that the court reporter and videographer were “officers of the court” and were, therefore, exempt under 3025.5. However, the appellate court held the court reporter and videographer were not employees of the court and were therefore not exempt. The trial court did not abuse its discretion by imposing the sanctions on the attorney. The attorney by asking deposition questions referencing the custody evaluation disclosed highly personal information about the child and family. Moreover, disclosure in the form of questions in the presence of a court reporter was malicious and reckless. The court affirmed the sanction of $50,000 against the attorney but reversed the sanction against the attorney’s client.
Be careful about asking questions in a deposition about a custody evaluation!
So, what is the lesson here? In a custody cases, do not ask questions about the custody evaluation in a deposition without court clearance. If you screw this up, you may be paying a lot of money in sanctions and could even face discipline.