Ethics in Brief: Court of Appeal Draws a Bright Line in Frivolous Appeal
By David C. Carr
Legal ethics for the practitioner is often about drawing lines. Often, it is not clear where the line should be drawn. The California Rules of Professional Conduct[1] and the statutes in the Business and Professions Code often seem clear when read in a vacuum, but not so clear when a lawyer must apply them in practice. Many published decisions from the California Courts of Appeal and the Review Department of the State Bar Court are valuable in the exercise of drawing the fine lines between what is ethically permissible and what is not.
N.D. v. Superior Court (E.F), Fourth District, Div. 3, case no G066061, 2026 WL 146498, filed 1/20/26, is not one of those decisions.
The opening words of the decision from Justice Scott sum it up:
There are many respected professions in which one may write solely to express someone’s sentiments. An advertiser can trumpet the good qualities of their client’s product without disclosing the negatives. A PR professional can put their client’s crisis in the best light without acknowledging the counterpoints. A speechwriter can craft aspirational promises without conceding the candidate’s limited ability to follow through. In these fields, delivering the client’s message is the name of the game.
The law is not one of those professions.
Lawyers are not mere mouthpieces for clients. Our profession depends on exercising judgment in what we say and how we say it. At times, the only correct professional judgment is to tell the client, “no.”
We publish this opinion as a cautionary tale: Lawyers may not make assertions in court that lack factual support, regardless of how much the lawyer or the client “earnestly believes” them. Lawyers may not impugn the integrity of the very system of justice in which they serve without a solid basis in both fact and law. Dissatisfaction with a ruling, however deeply felt, is not itself evidence of judicial misconduct.
Most lawyers show remarkable skill in helping clients understand our professional obligations yet too many mistake the need for zealous advocacy with a “the customer is always right” policy. We remind them that the legal profession runs on facts, law, and justice. The law cannot tolerate unsupported assertions fueled only by desires, especially baseless accusations against our hardworking trial judges.
N.D.’s lawyer, Phillips, filed a petition for a writ of mandate asking the appellate court to refer N.D.’s statement of disqualification of the trial judge to a different judge. The only document submitted in support of the petition was the trial court’s order striking the statement of disqualification, which itself was submitted. What was submitted, in lieu of a cogent argument, was a litany of grievances against the trial court, which “ include the court’s alleged refusal to rule on certain matters, to serve Phillips with copies of protective orders, and to respond to e-mail requests. But there were no citations to the record. There was virtually no record at all.”
The Court of Appeal invited briefing from Phillips and the opposing party. In response to this invitation for a “do over,” Phillips stated that he would have supplied documents supporting the accusations, but that he believed that the legal issue of whether the sitting judge could pass on her own motion to be disqualified was “straightforward”. Some emails supporting Phillips’s contention that courtroom clerks were reluctant to communicate with him were attached in service of the accusation that the court was actively retaliating against N.D. But mostly Phillips relies on his client’s and his own “earnest belief” that the trial judge “openly and notoriously’ champion[s] the cause of [N.D.’s] opponents” rather than submit actual evidence supporting those beliefs.
The Court of Appeal found N.D.’s petition frivolous for violating the California Rules of Court, 8.486(b)(1)(B) & (C) and 8.204(a)(1)(C) which require citations to the record in support of argument.
On the ethics side, it also found that Phillips violated Business and Professions Code section 6068(b), which requires a lawyer to maintain the respect due the court. “[C]oncrete evidence”—not just the lawyer’s or client’s ire—is needed before a lawyer levies “serious accusations against a trial judge,” citing Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 793.
The Court of Appeal also cited Rule 3.1 (a lawyer shall not “assert a position in litigation” “without probable cause”), and Rule 3.3 (a lawyer shall not “knowingly make a false statement of fact or law” to the court) as implicated by Phillips’s reliance on the “earnest beliefs” held by him and N.D. “[C]ounsel has a professional responsibility not to pursue an appeal [or assert a position] that is frivolous or taken for the purpose of delay, just because the client instructs him or her to do so.” (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 521.) (Emphsis added.)
That last note is perhaps the most important takeaway. The Court cites Rule 2.1, the lawyer’s duty of independent judgment and candid advice, in support of the proposition that a lawyer is required to inform the client that serious accusations against a judge must be based on evidence and not merely belief, however earnest, and to refuse to present such allegations without evidence establising probable cause (citing Gong & Kwong, again at 521.) Yes, you can say no to the client, and under some circumstances, you are ethically compelled to say no to the client. It is perhaps ironic that the California Supreme Court recently rejected a similar change to Rule 1.2, which governs the allocation of authority between lawyer and client, that would have added a comment clarifying that a lawyer may decline to grant procedural accommodations to opposing counsel.
The Court of Appeal imposed a heavy sanction of $25,000 on the lawyer. It also ordered the court clerk and the lawyer to forward a copy of the decision to the State Bar of California. It seems probable that disciplinary proceedings will ensue.
The facts of N.D. are so extreme that it is of little value in making fine line evaluations of the ethical behavior involved in making allegations of judicial misconduct or in pursuing possibly frivolous appeals. It is rather a “bright line” case that clearly delineates behavior that is far beyond the pale of what is expected of a lawyer. Of course, the type of lawyer who would benefit from reading N.D. is probably the type of lawyer it will never reach.
[1] Hereafter referred to as “Rule” or “Rules.”
