Stayed Suspension For Court Order Violation

An attorney’s first brush with bar discipline in 30 years of practice drew a proposed stayed one-year suspension from the California State Bar Court.

The misconduct involved violations of a court order limiting issues in a suit that the attorney had brought against a tobacco company as found by the trial court’s sanction order

On March 7, 2016, the district court issued an 18-page Order Imposing Sanctions on Plaintiff’s Counsel for Misconduct During Trial (Sanctions Order) and sanctioned Purcell in the amount of $1,500 for violating the pretrial orders by seeking to elicit testimony from Dr. Horn, Dr. Chirieac, and Dr. Schroeder about non-lung cancer diseases that had been ordered excluded from evidence. Purcell timely paid the sanctions and appealed the Sanctions Order to the United States Court of Appeals for the Ninth Circuit. On November 16, 2018, the Ninth Circuit affirmed the Sanctions Order. On January 16, 2019, Purcell’s petition for rehearing and rehearing en banc was denied, and the Ninth Circuit issued its mandate on January 24, 2019

Merits

Purcell contends that he believed his questioning of Dr. Horn was necessary to protect his client from an unsettled statute of limitations issue. We find no merit to his argument. During the disciplinary proceeding, Judge Hamilton testified that when the Pooshs’s matter was tried, there was no statute of limitations defense being raised in the case. Even if Purcell genuinely believed there was an outstanding statute of limitations defense, it was still not permissible for him to inquire about non-lung cancer injuries. In light of the district court’s repeated pretrial rulings excluding such evidence, which were made after considering Purcell’s argument that he had to prove Pooshs’s non-lung cancer diseases were separate and distinct, Purcell had no right to disregard the court’s binding rulings even if his objective was to protect his client’s interest.

Sanction

Notwithstanding his misconduct, the record reveals that Purcell is a highly respected and skilled attorney who zealously advocates on behalf of his clients. We are mindful that his practice is complex, stressful, and involves plaintiffs suffering from the most serious injuries. Purcell’s character witnesses, including esteemed judges and attorneys, attested to his integrity and advocacy skills. We also recognize that Purcell’s misconduct occurred at the end of over a decade of hard-fought litigation, going toe-to-toe with presumably relentless advocacy from the defendants’ attorneys. Nevertheless, while it is one thing to cautiously explore the contours of a judge’s ruling, it is quite another to disregard its parameters, even in high-stakes litigation. We do not find that Purcell acted in bad faith when committing the misconduct—instead, we view his disobedience as unreasonable and without careful consideration for the consequences of his actions. Accordingly, we find that a one-year stayed suspension is appropriate given the totality of the circumstances in this case. This discipline recommendation addresses the seriousness of Purcell’s misconduct, and it adequately protects the public, the courts, and the legal profession.

(Mike Frisch)