By Carole J. Buckner

Buckner is a partner with Wilson, Elser, Moskowitz, Edelman & Dicker, LLP in the San Diego office and a member of LACBA’s longstanding Professional Responsibility and Ethics Committee, which regularly provides ethics articles. The views and opinions expressed in this publication are solely the author’s.

In Allen v. Patel __ Cal.App.5th __, 2025 WL 3718739 (4th Dist. Ct. App. 2025), the court addressed attorney misconduct involving a violation of Rule 3.3 of the California Rules of Professional Conduct as well as misconduct involving disparaging comments regarding defense counsel. The lawsuit stemmed from a 2020 incident at the Ontario Airport Inn, owned by Anil Bhula Patel. Brenda Lee Allen and her family were staying at the hotel. Following a dispute over room payments, Patel allegedly entered Allen’s room without consent, threw her belongings into a hallway, and struck and pushed her. Allen filed suit alleging assault, battery, trespass, negligent hiring, and intentional infliction of emotional distress, seeking both compensatory and punitive damages.

The trial court had granted motions in limine to exclude opinion testimony by lay persons on the cause of Allen’s medical conditions, as well as to exclude expert testimony beyond the subject matter set forth in expert disclosures and depositions. Further, the trial court had granted motions in limine to exclude self-diagnosis on causation. During discussion of the motions in limine, the court asked counsel if there would be evidence offered by an expert to show that the medical condition of the plaintiff being caused by the incident. The lawyer’s response led the court to conclude that there would be such evidence. The trial court allowed the testimony based on counsel’s representations to the court. Plaintiff’s counsel introduced graphic, inflammatory evidence during the trial, without expert witness testimony as to causation.

The jury awarded Allen a significant verdict of $1,051,200 in compensatory damages. However, the trial court subsequently granted Patel’s motion for a new trial due to the pervasive misconduct of plaintiff Allen’s lead counsel.

The trial court found that counsel knew that the experts retained did not have the qualifications to, nor could hey link plaintiff’s medical issues involving incontinence to the incident, and that counsel’s representations to the contrary were “essentially false.” The trial court found that counsel violated California Rule of Professional Conduct 3.3, by misleading the judge and jury with knowingly false statements of fact and law, including arguing causation for which there was no evidence. The trial court further found that counsel made statements in the hearing on defendants’ motions in limine that were false, and also made statements of fact in opening that counsel indicated would be proved, but failed to do so.

Rule 3.3 requires “candor” toward the tribunal, and prohibits lawyers from “knowingly” making false statements of fact or law, or failing to correct a false statement of fact or law to a tribunal. The term “knowingly” is defined by Rule 1.0, to mean “actual knowledge of the fact in question.” However, the same provision also indicates that “A person’s knowledge may be inferred from the circumstances.”

The trial court also granted a motion in limine prohibiting “golden rule” arguments. Counsel violated the court’s order by utilizing "golden rule" arguments in closing argument by asking jurors to place themselves in the shoes of the plaintiff and decide what they would want as compensation if they had suffered the same injury. The court cited Beagle v. Vasold (1966) 65 Cal.2d 166, 182, fn. 11, for the proposition that golden rule arguments are improper.

The trial court granted a motion in limine precluding “reptile theory” arguments, which attempt to trigger the "reptilian" or primal part of jurors' brains. The court cited Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 599, as to such violations. Counsel employed "reptile theory" arguments by framing the defendant’s conduct as a broader threat to community safety, thus encouraging a verdict based on the jury’s desire to protect the “community” rather than the facts of the specific case.

On appeal the Fourth District court affirmed the order for a new trial, finding that there was substantial evidence in the record supporting the trial court’s findings that counsel made knowingly false and misleading statements, and elicited inadmissible, prejudicial and highly inflammatory testimony in violation of the court’s orders not to introduce certain testimony as to plaintiff’s medical condition unless counsel was able to introduce an expert witness to establish a medical diagnosis of her condition that was caused by the hotel incident. The court further found that counsel had made improper golden rule and reptile arguments.

The court indicated that although counsel did not make an express promise to introduce expert witness testimony or other evidence establishing causation, there was substantial evidence in the record to support a finding that counsel “knowingly misled the trial court into believing that counsel would introduce expert testimony establishing causation.” The court agreed the cumulative effect of counsel’s tactics was so prejudicial that no curative instruction could have remedied the damage, and found that it was "reasonably probable" the defendant would have achieved a more favorable result had the misconduct not occurred.

The appellate court also provided a lesson related to civility. The California Supreme Court recently considered a proposed Rule of Professional Conduct addressing “prohibited incivility” but ultimately declined to adopt such a rule. The proposed rule would have provided that a lawyer shall not engage in unprofessional conduct that is abusive or harassing as shall be determined by the circumstances. The court further affirmed the grant of the new trial based on plaintiff’s counsel’s improper personal attacks directed at defense counsel, suggesting that he was an unethical, unscrupulous, callous lawyer. Plaintiff’s counsel speculated – without evidence - as to what defense counsel might say to his client about various possible verdicts. The court found such argument was inflammatory, and that it potentially undermined the jury’s impartiality, and impugned the motives and integrity of defense counsel, while not providing any relevant, factually based argument. The court pointed out that while counsel have a wide latitude to discuss the case in closing, they may not make personally insulting or derogatory remarks directed at opposing counsel, or impugn counsel’s motives or character. Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, at 796

The Allen decision serves as a recent reminder of a lawyer’s professional obligation of candor to the court, and also indicates that even without a specific rule on civility, attacks on opposing counsel can constitute misconduct.