Client didn’t direct or encourage attorney to disclose confidential info. . .
In partial reversal, Second District affirms sanctions imposed on attorney for disclosing information contained in a confidential child custody evaluation report, but reverses as to client on whom sanctions were also imposed
In re Marriage of Anka and Yeager
(February 4, 2019)
California Court of Appeal 2 Civil B281760 (Div 6) 31 Cal.App.5th 1115, 242 Cal.Rptr.3d 884, 2019 FA 1874, per Gilbert, PJ (Perren and Tangeman, JJ, concurring). Ventura County: Smiley, J, affirmed in part and reversed in part. For appellants: Honey Kessler Amado, CALS, (310) 550-8214. For respondent: Peter Goldenring, (805) 642-6702. For child: Orly Degani, CALS, (424) 704-8700. CFLP §§G.84.2, G.173.10, P.56.
During her marriage to Louis Yeager, Anna Anka gave birth to their child, E.Y. They later separated and began disso proceedings, in which the trial court dissolved the marriage, but did not decide child custody issues. The court later ordered a Dr. Ian Russ to perform a child custody evaluation, and if necessary, to authorize psychological evaluations of both Anna and Louis. Russ subsequently filed his custody evaluation report, which included a psychological evaluation by Dr. Carl Hoppe.
Anna then married Paul Anka and had their child. As with her prior marriage, divorce proceedings ensued, along with a custody dispute. In both cases, Anna was represented by attorney Lisa Helfend Meyer. During the Anka disso, Louis file an affidavit in support of Paul, accusing Anna of “substantial misconduct involving the children of both marriages.” When Meyer took Louis’s deposition in this disso, she asked him what he had told Russ during the custody evaluation, as well as what E.Y. told Russ and what Russ’s findings and conclusions were. Louis mostly answered that he did not remember; he did not return to the deposition after the lunch break.
Louis then moved for sanctions in his and Anna’s disso, per Fam C §3025.5 and §3111(d) for Meyer’s disclosing information contained in a confidential custody evaluation. In its order, the trial court found that Meyer’s deposition questions disclosed parts of Russ’s and Hoppe’s confidential evaluations in violation of Fam C §§3025.5 and 3111(d) and that the disclosures were “made maliciously, recklessly, and without substantial justification, and were not in the best interests of the child. The lower court further determined that a fine of $50,000 would be a deterrent to repetition of the conduct and would not impose an undue financial burden on either Meyer or Anna. Accordingly, the court ordered Meyer and Anna to pay sanctions in that amount.
Anna and Meyer appealed, and the Second District affirmed in part and reversed in part.
Parsing the protection. . .
The justices began by noting that Fam C §3025.5(a) protects information contained in a child custody evaluation and psychological evaluation from disclosure except to the parties and their attorneys, certain federal or state judicial officers or attendant personnel, including an employee or agent of the family court facilitator and the facilitator, the child’s attorney, and other persons authorized by the trial court. Fam C §3111(d), they continued, authorizes sanctions for unwarranted disclosure of a child custody evaluation, in an amount sufficient to deter future conduct, but not to impose an unreasonable financial burden on the sanctioned person. Meyer admitted asking Louis about his statements to Russ, and about Russ’s findings regarding Anna’s alleged abuse of her children and their attachment to her. However, she contended that those questions did not disclose protected information because the statute makes confidential only psychological evaluations of a child or recommendations regarding custody and visitation. The justices didn’t agree. They reasoned that Fam C §3025.5(a)’s purpose is the protection of the child privacy and the encouragement of the participants in the evaluation to speak with candor. Thus, the panel found, Louis’s statements to Russ, and Russ’s conclusions regarding parental abuse and the children’s relationship with their parents were “at the very heart of every child custody evaluation,” and well within the protection of the statute.
A penalty here, a penalty there. . .
Meyer next contended that Fam C §3025.5 “carries no penalty for its violation.” The panel pointed out that Fam C §3111(d) provides the penalty for unwarranted disclosure of a child custody evaluation. They gave short shrift to Meyer’s contention that the report itself, but not the information in it, was protected by this statute. As for her claim that Yeager hadn’t disclosed any confidential information, the justices agreed that he evaded answering the questions by saying he didn’t remember. However, they found, the nature of the questions themselves “implicitly disclosed confidential information.” “One would have to be unduly naïve not to know the information contained in the report, “they stated.
Who can hear. . .
Meyer also argued that the information was not disclosed to unauthorized persons, since only the parties, their attorneys, a court reporter, a videographer, and Paul’s attorney were present. The justices reasoned that neither the court reporter nor the videographer were court employees and they would not be allowed to hear the info as officers of the court, who were not exempted under Fam C §3025.5. Similarly, Paul’s attorney was not exempt because Paul was not a party in the Yeager disso and his attorney was not counsel for a party in that litigation.
She meant to do it. . .
The justices were similarly unpersuaded by Meyer’s contention that the disclosures were not malicious or reckless. The justices found that Meyer had “intentionally asked numerous questions that disclosed the information.” Her actions were not inadvertent, they reasoned, and “went beyond reckless.” The panel did not believe, as Meyer asserted, that the children’s best interests were not negatively impacted by her questions. On the contrary, the disclosure of highly personal family information could not be in the children’s best interests, they said. Moreover, the justices concluded, the sanctions order was not protected by the CC §47(b) litigation privilege and the trial court’s order imposing them was factually sufficient to meet due process requirements. And, if the amount of sanctions imposed an undue financial burden on her, Meyer should have presented evidence to that effect. Summing up, the justices determined that the trial court had not abused its discretion by imposing sanctions on her.
Anna didn’t know. . .
The justices could not say the same for the sanctions imposed on Anna. They reasonably assumed that Meyer, “a seasoned trial attorney,” was in charge of Anna’s case. And, they could also assume that Anna would have no reason to believe that her attorney’s questions were improper. Moreover, the panel found nothing in the record to convince them that Anna either directed or encouraged Meyer to obtain confidential information in that way. Therefore, the justices reversed the sanctions order as to Anna. But, they affirmed the order as to Meyer.
It is obvious that this opinion is a cautionary tale for family law attorneys. In its introductory paragraphs, the justices remind us of Cal Rules of Court, rule 9.7, which requires attorneys, as officers of the court, to “strive to conduct [themselves] at all times with dignity, courtesy, and integrity.” They warn that an attorney’s “zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands.” They conclude that “[U]nfortunately, that did not happen here.” Enough said.