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In re Marriage of Bianco

California Court of Appeals, Fourth District, First Division

November 22, 2013

In re the Marriage of GREGORY J. and MARCELA BIANCO.
v.
WINIFRED WHITAKER, Appellant. GREGORY J. BIANCO, Respondent,

APPEAL from orders of the Superior Court of San Diego County, No. D520702 William Hays McAdam, Jr., Judge, and Edlene C. McKenzie, Commissioner.

Page 827

COUNSEL

Law Office of Carolyn Chapman and Carolyn Chapman for Appellant.

Linda Cianciolo for Respondent.

Page 828

OPINION

McCONNELL, P. J.

INTRODUCTION

Attorney Winifred Whitaker appeals from February and March 2012 orders jointly and severally sanctioning her $43, 000 under rule 2.30(b) of the California Rules of Court (rule 2.30(b)) for violating the California State Bar Rules of Professional Conduct by negligently hiring an attorney ineligible to practice law to assist her in representing the wife (wife) in a dissolution trial.[1] Whitaker contends the court abused its discretion in sanctioning her because: (1) it is unclear from the record whether the husband (husband) sought sanctions under rule 2.30(b); (2) the court based the orders on an erroneous finding Whitaker had committed an ethical violation; (3) Whitaker demonstrated good cause for the court not to sanction her; (4) the court failed to consider the burden on Whitaker before imposing the sanctions jointly and severally; and (5) the sanctions order included amounts not authorized by rule 2.30(b).

We requested and received supplemental briefing on the foundational issue of whether rule 2.30(b) authorized the court to impose sanctions for a violation of the Rules of Professional Conduct in a family law proceeding. We conclude rule 2.30(b) did not authorize the sanctions and, consequently, we reverse the court's orders.[2]

BACKGROUND

Whitaker represented wife in dissolution proceedings. Whitaker engaged attorney Thomas W. Smith to act as her cocounsel at trial and he so acted even though he was ineligible to practice law at the time because of failing to comply with mandatory continuing legal education requirements. On the last day of the trial, the court learned of Smith's ineligibility. The court declared a mistrial and invited husband to bring a sanctions motion.

Husband subsequently moved for sanctions under Family Code section 271 (section 271) and California Rules of ...


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