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Court Reverses Sanctions Ordered Over Client Credibility Assessment

By Kristine L. Roberts, Litigation News Associate Editor – August 27, 2008

A recent ruling by a Washington state appeals court, reversing an order of sanctions, highlights the ethical issues lawyers face when evaluating their client’s credibility. In Saldivar v. Momah, the appellate court held that an attorney cannot be sanctioned based solely on the ultimate determination of the client’s credibility.

Saldivar sued physician Momah in 2004 for sexual abuse. She claimed that she was seen by Momah three times and that he molested her during two of those visits. Momah counterclaimed, alleging that Saldivar brought suit without good cause and under false pretenses.

In a 2006 ruling, trial judge Katherine Stolz declared the lawsuit frivolous and ordered Saldivar to pay Momah more than $2.8 million. She found that Saldivar fabricated her claims, noting that the “contradictions and inconsistencies in Ms. Saldivar’s testimony were some of the most pronounced this Court has ever seen.”

Judge Stolz was also sharply critical of Saldivar’s lawyer and found that he had filed pleadings without conducting a reasonable investigation and without a reasonable belief that the claims had factual support. The judge condemned the attorney for making “salacious false allegations,” designed to damage the defendant’s reputation and to attract media attention. She imposed harsh sanctions, including a $300,000 fine and an order directing the lawyer to post her ruling on his law firm website.

The court of appeals reversed both the judgment and the order of sanctions. The three-judge panel found that Judge Stolz erred in excluding much of Saldivar’s evidence.

It also found that because the trial court “systematically” excluded evidence that could have corroborated Saldivar’s claims, the court abused its discretion in sanctioning the lawyer for the client’s lack of credibility. “Absent a showing that the attorney suborned perjury, it is improper to impose sanctions on an attorney based solely on the ultimate determination of his client’s credibility,” the appellate court opined.

According to the appellate court, a contrary ruling could chill vigorous and creative advocacy or cause attorneys to turn down cases brought by “uncharismatic” clients. So long as an attorney conducts an investigation before filing a pleading and reasonably believes the information to be correct, sanctions are improper. The court of appeals concluded that the attorney had taken reasonable steps to investigate the claims.

“In some respects, this is an easy case,” explains Andrew S. Pollis, Cleveland, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. “If a lawyer is faced with a conflicting record, so conflicting that the court of appeals cannot affirm the trial court’s decision, then those same fact issues by definition must be sufficient to give the attorney cause to file the case,” he says.

The Saldivar decision is consistent with the weight of authority across the country. E.g., In re Big Rapids Mall Associates; Mar Oil, S.A. v. Morrissey; Needle v. White, Mindel, Clark & Hill. These cases agree that sanctions should not turn on whether a court or jury ultimately decides that the client lacks credibility.

Lawyers should be able to advocate vigorously without fear of sanctions, says David A. Soley, Portland, ME, cochair of the Section’s Trial Practice Committee.

“While attorneys cannot take frivolous positions or abuse process, we need to err on the side of letting attorneys advocate assertively and aggressively,” Soley says.

Soley expresses concern with courts’ using sanctions to chill creativity and discourage vigorous advocacy.

Pollis agrees that the system would be “unworkable” if lawyers were held accountable for their client’s credibility. Yet Pollis draws a distinction between objective and subjective indicia of credibility. “If a lawyer has objective reasons to doubt his client’s credibility, sanctions may be appropriate. However, if a lawyer has only subjective reasons to question credibility—for example, an uncharismatic client—sanctions do not make sense,” Pollis says.

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