Lawyer Properly Sanctioned $50,000 for Deposition Questions

Wednesday, February 6, 2019

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Lawyer Properly Sanctioned $50,000 for Deposition Questions—Court of Appeal

Opinion Says Attorney for Deponent’s Ex-Wife Disclosed Information From Confidential Report; Rejects Argument That Harm Did Not Occur Because No Outsiders Were Present

By a MetNews Staff Writer

—AP

Singer/songwriter Paul Anka is seen with his then-wife, actress Anna Anka. Now divorced, a custody battle continues. In a deposition in connection with that litigation, Anna Anka’s attorney, Lisa H. Meyer, asked her client’s first husband questions derived from a confidential report concerning the child of the deponent and his ex-wife. The Court of Appeal on Monday affirmed a $50,000 sanction imposed on Meyer, rejecting her argument that harm was not done because no unauthorized persons attended the deposition.

The Court of Appeal for this district has affirmed a $50,000 sanction imposed on an attorney whose deposition questions, directed to her client’s ex-husband, revealed confidential information about their child, in violation of the Family Code.

Div. Six’s opinion, filed Monday, was written by Presiding Justice Arthur Gilbert. It affirms the sanction slapped on attorney Lisa H. Meyer of the Los Angeles family law firm of Meyer, Olson, Lowy & Meyers, but reverses the order rendering Meyer’s client, Swedish-American model/actress Anna Anka, jointly and severally liable.

Meyer’s questions came during the deposition of Anka’s first husband, Louis Yeager, in her client’s custody battle with her more recent ex-husband, singer and songwriter Paul Anka, to whom she was married from 2008-10. The deposition took place after Yeager filed an affidavit in support of Paul Anka claiming that Anna Anka had engaged in substantial misconduct involving her children, one child by Yeager and one by Anka.

Meyer asked Yeager several questions related to a child custody evaluation ordered by the court in the Yeager proceeding, which included a psychological report on the Yeager child.

The sanction was imposed by Ventura Superior Court Judge John R. Smiley (in response to a request by Yeager in his own custody dispute with Anna Anka), acting pursuant to provisions of the Family Code. Sec. 3025.5 sets forth:

“In a proceeding involving child custody or visitation rights, if a report containing psychological evaluations of a child or recommendations regarding custody of, or visitation with, a child is submitted to the court,…that information shall be contained in a document that shall be placed in the confidential portion of the court file of the proceeding, and may not be disclosed….”

The statute provides exceptions for disclosure, including to a party to the proceeding and his or her attorney.

Family Code §3111(d) permits the court to impose sanctions upon a determination that “an unwarranted disclosure of a written confidential report has been made….” Sec. 3111(f) states that “a disclosure is unwarranted if it is done either recklessly or maliciously, and is not in the best interests of the child.”

Gilbert Rejects Contention

“Meyer argues there were no disclosures to unauthorized persons,” Gilbert recited. “She points out the only persons present at Yeager’s deposition were the parties, their attorneys, a court reporter, a videographer, and Paul’s attorney.”

He continued:

“Meyer claims the court reporter and videographer are exempt under section 3035.5, subdivision (a)(2) as officers of the court. But the subdivision does not exempt officers of the court; it exempts a ‘court employee.’…Nor is Paul’s attorney exempt under section 3035.5, subdivision (a)(1) as an attorney for a party to the proceeding. The confidential custody report was prepared for the Yeager action. Paul is not a party to that action. Finally, Meyer points to no evidence that the deposition itself was taken under seal.”

Questions Were Disclosure

Gilbert related that Meyer took the position that neither the answers by Yeager nor her questions revealed confidential information. He responded:

“It is true that Yeager evaded answering the questions by stating he did not remember. But the nature of Meyer’s questions implicitly disclosed confidential information. One would have to be unduly naïve not to know the information contained in the report.”

Meyer contended on appeal that the “information” referenced in §3025.5 refers only to the psychological portion of the evaluation.

Gilbert responded:

“Meyer attempts to parse the statute into meaninglessness. The purpose of section 3025.5, subdivision (a) is to protect the privacy of the child and to encourage candor on the part of those participating in the evaluation. Statements made to the evaluator and the evaluator’s conclusions about parental abuse and the nature of the relationship between parent and child are well within the protection of the statute. The evaluator’s conclusions about parental abuse and the relationship between parent and child are at the very heart of every child custody evaluation.”

Terms Contention ‘Absurd’

He rejected the lawyer’s argument that §3111 applies only to protect the written report itself, and not the information contained in it. “Suffice it to say,” Gilbert remarked, “the argument is absurd.”

Declaring that Anna Anka should not be jointly and severally liable for payment of the sanction, he said:

“There is nothing in the record to suggest Anna directed or even encouraged Meyer to disclose privileged information. Presumably Meyer, a seasoned trial attorney, was in charge of the proceedings. Most clients assume their attorney’s questions are proper and will not expose them to sanctions. There is no suggestion that Anna thought otherwise.”

Ethical Duties

Gilbert began his opinion by counseling:

“It is axiomatic that an attorney must represent a client to the best of his or her ability. The attorney owes a duty to that client to present the case with vigor in a manner as favorable to the client as the rules of law and professional ethics permit. But besides being an advocate to advance the interest of the client, the attorney is also an officer of the court….

“California Rules of Court, rule 9.7, pertaining to the oath required when an attorney is admitted to practice law, concludes with, ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’ 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.”

The case is In re Marriage of Anka and Yeager, 2019 S.O.S. 651.

James A. Karagianides of the Law Offices of Honey Kessler Amado in Beverly Hills represented Anka and Meyer on appeal; Yeager was assisted by Peter A. Goldenring and Edwin S. Clark of Goldenring & Prosser in Ventura; Salley E. Dichter of Westlake Village and Orly Degani of Degani Law Offices in Los Angeles were counsel for the Yeager child.