United States District Court, N.D. California, San Francisco Division
ORDER REFERRING AIRENE WILLIAMSON TO THE STANDING COMMITTEE ON PROFESSIONAL CONDUCT Re: Dkt. No. 42
NATHANAEL M. COUSINS, Magistrate Judge.
This order arises out of Airene Williamson's repeated misrepresentations to the Court regarding the identity of the plaintiff in this suit. After reviewing her contradictory oral representations and written submissions, the Court finds that Airene Williamson "engaged in unprofessional conduct" under Civil Local Rule 11-6(a). The Court therefore refers the matter to the Northern District's Standing Committee on Professional Conduct for further investigation and discipline if warranted.
I. PROCEDURAL HISTORY
On August 14, 2013, Airene Williamson filed this suit on behalf of Tupou Netane, "an individual, " in San Mateo County Superior Court. Dkt. No. 1-1 at 2. The complaint asserts causes of action for wrongful foreclosure, fraud, quiet title, and declaratory relief against defendants Wells Fargo and Bank of New York. Id. Williamson signed and verified the complaint under penalty of perjury as attorney for the plaintiff. Id. at 25-26.
On September 19, 2013, Wells Fargo removed the action to this Court based on diversity. Dkt. No. 1. On October 15, 2013, Wells Fargo moved to dismiss the complaint. Dkt. No. 9. Bank of New York joined the motion. Dkt. No. 13. On October 29, 2013, non-party Equity Growth Asset Management moved to intervene and expunge the notice of pending action (lis pendens) that Netane had filed in the Superior Court. Dkt. Nos. 1-1 at 59-61; 14.
On October 31, 2013, Williamson and her law office, Williamson Law Office, PLLC ("WLO"), moved for leave to withdraw as counsel for plaintiff Tupou Netane on the basis that "the relationship between the Plaintiff and WLO has already been formally terminated as of September 11, 2013." Dkt. No. 16 at 3. Williamson signed the motion to withdraw as "attorney for TUPOU NETANE." Id. at 4. The motion was further accompanied by a certificate of mailing in which an employee of WLO certified that on October 31, 2013, the motion was served by email and mail on Tupou Netane. Id. at 5.
The Court set the motion for hearing on December 11, 2013, and ordered both plaintiff and plaintiff's counsel of record to appear in person at the hearing. Dkt. No. 28. On December 4, 2013, Williamson filed a request that the Court "set aside its order requiring WLO to appear at the hearing on December 11, 2013, or, alternatively, to permit WLO to appear telephonically." Dkt. No. 30. In support of her request, Williamson repeated her assertion that the motion to withdraw was supported by good cause because "Plaintiff has already terminated WLO's services as her counsel as of September 11, 2013." Id. at 2. Once again, Williamson signed the request as "attorney for TUPOU NETANE." Id. at 3. An unsigned certificate of mailing accompanied the request. Id. at 4. The certificate stated that Tupou Netane was served by email and mail. Id.
Because Williamson's motion to withdraw as counsel and subsequent request to set aside the order requiring personal appearance failed to include a supporting declaration or affidavit, as required by the Local Rules, the Court ordered WLO to file a declaration of facts supporting the requests. Dkt. No. 32. The Court ordered WLO to include facts showing (1) plaintiff's termination of WLO's services; (2) WLO's efforts to notify plaintiff of WLO's motion to withdraw as counsel and the Court's orders requiring plaintiff's personal appearance at the hearing on the motion; (3) plaintiff's consent to the motion to withdraw and WLO's efforts to ascertain plaintiff's position regarding the motion; and (4) any steps WLO took to avoid reasonably foreseeable prejudice to the plaintiff's rights, as required by California Rule of Professional Conduct 3-700(A)(2). Id.
In response to the Court's order, Williamson filed a declaration, stating under penalty of perjury that the motion to withdraw as counsel should be granted because "Mr. Tupou Netane has since passed away" and "Plaintiff's family/representatives have already terminated WLO's services...." Dkt. No. 33 ¶¶ 4, 7.
On December 11, 2013, the Court held a hearing on Williamson's motion to withdraw as counsel. Dkt. No. 36. Airene Williamson and Tupou Netane's daughter, Malissa Netane, appeared at the hearing. Dkt. No. 58 at 2. In response to the Court's questions, Williamson acknowledged that at the time she filed the complaint in state court, she knew that the plaintiff, Tupou Netane, was dead. Id. at 22.
The Court denied Williamson's motion to withdraw as counsel. Dkt. No. 36. The Court ordered WLO to file "a statement noting the death of plaintiff, " as well as a status update informing the Court if counsel intended to request substitution of the plaintiff, seek termination of the case, or request more time. Id. The Court further ordered that, if counsel intended to request substitution of the plaintiff, she must inform the Court of the identity of the person she proposes to substitute and explain why that person is a proper plaintiff. Id.
In response, Williamson filed a declaration stating that "Tupou Netane Sr." died on January 9, 2011, which is more than two years before she filed the complaint. Dkt. Nos. 39 ¶ 6, 1-1 at 2. The declaration further states that Malissa Netane, Tupou Netane's daughter, "finally informed [Williamson's] office that upon further conferring with her family, specifically her brother, the Tupou family has decided NOT to move forward with the instant case against the named defendants, " and that Williamson is in the process of obtaining a stipulation of dismissal of the case. Id. ¶¶ 7-9.
On December 17, 2013, to protect the rights of others who might be affected by Court action, the Court ordered Williamson to serve certain Court orders and filings on Malissa Netane, her brother, her mother, and any other family member or nonparty who could be Tupou Netane's potential successor or representative or otherwise might be a party with the right to assert the claims in the complaint. Dkt. No. 40. The Court also continued the initial case management conference and ordered the parties and Equity Growth Asset Management to file a joint report at least seven days prior to the January 15, 2014, case management conference. Id. The Court ordered that the joint report advise the Court of the parties' respective positions regarding the effect of the notice of plaintiff's death on this litigation and the pending motions. Id. The Court did not receive a report in response to this order until February 5, 2014. Dkt. No. 52.
On January 8, 2014, Williamson filed a notice purporting to dismiss the case on behalf of plaintiff "Tupou Netane." Dkt. No. 41. The notice states, "TO THIS HONORABLE COURT: Comes Now, Plaintiff TUPOU NETANE, by and through his attorney of record, respectfully submits this Notice of Voluntary Dismissal of Action pursuant to FRCP Rule 41(a)(1)(A)(i)." Id. at 1:25-26. The notice further states that "the Plaintiff dismisses this case without prejudice pursuant to Rule 41(a)(1)(A)(i) with each party to bear their own attorneys' fees and costs in accordance with the terms of the settlement agreement between the Parties." Id. at 2:6-8. The accompanying certificate of service stated that a WLO employee served the document on Malissa Netane and opposing counsel. Id. at 3.
On January 10, 2014, the Court ordered Williamson to show cause why the "Notice of Voluntary Dismissal of Action" should not be stricken as an improper filing, since Williamson previously represented that plaintiff Tupou Netane had passed away, and Tupou Netane was therefore incapable of acting with or without counsel to dismiss the action. Dkt. No. 42 at 5.
The Court further ordered Williamson to show cause in writing why she should not be sanctioned under Federal Rule of Civil Procedure 11 or the Court's inherent power "for presenting to the Court filings that contain factual contentions without evidentiary support, legal contentions not warranted by law, and/or that were presented for an improper purpose" in connection with the motion to withdraw as counsel. Id. at 6. The Court noted that such sanctions may include a formal reprimand, monetary sanctions, and referral to the Northern District Standing Committee on Professional Conduct, the Chief Judge, or another appropriate disciplinary authority in California or the Northern District. Id.
Williamson responded to the order to show cause on January 27, 2014. Dkt. No. 47. In her response, Williamson stated for the first time that Tupou Netane's son, whose name is also Tupou Netane, is the plaintiff in the case. Id. at 3 ("The complaint was filed on August 14, 2013 with Son Tupou as the intended Plaintiff."). However, Williamson repeatedly referred to Tupou Netane (the father) as the "Proper Plaintiff" Id. at 2, 3, 5-15 ("Tupoe [sic] Netane the father (deceased) was and should have been the Proper Plaintiff in this Complaint if he was still living[.]").
Williamson conceded in her response that "WLO should have been more precise in its pleadings, and made it clear that the statements to which the court objects refer to the Netane family, not Tupou Netane [the father] himself." Dkt. No. 47 at 6. "However, " she argues, "it should be noted that this was not a case of WLO intentionally misleading the court. Rather, this was a case of imprecise labeling of the parties in pleadings filed by WLO." Id. Williamson continued, "[i]mprecise labeling and drafting aside, the statements have evidentiary support to the extent that they refer to the Netane family, rather than Proper Plaintiff." Id.
Williamson and defendants filed a joint status report on February 5, 2014. Dkt. No. 53. Even though Tupou Netane (the son) is not deceased, Williamson continued to refer to the substitution of parties under Federal Rule of Civil Procedure 25(a), which governs substitution of parties when a party dies. Dkt. No. 53 at 2. Due to the conflicting representations about the plaintiff's identity, the Court ordered Tupou Netane (the son) to appear in person at the case management conference on February 12, 2014. Id.
As ordered, Tupou Netane (the son), together with Malissa Netane, appeared on February 12. Dkt. No. 55. In response to the Court's questions, Tupou Netane (the son) confirmed that he was the plaintiff in the case, he had reviewed the "Notice of Voluntary Dismissal of Action, " and he wished to dismiss the case. Id. Tupou Netane (the son) also consented to the jurisdiction of a magistrate. Id. The other parties likewise consented to a magistrate's jurisdiction. Dkt. Nos. 6, 23, 24.
Although Airene Williamson characterizes her conduct in this case as an instance of "imprecise labeling of the parties, " her misconduct goes beyond imprecision or carelessness. Civil Local Rule 11-6(a) provides that "[i]n the event that a Judge has cause to believe that an attorney has engaged in unprofessional conduct, in addition to any action authorized by applicable law, the Judge may... [r]efer the matter to the Court's Standing Committee on Professional Conduct...." The Court finds that Williamson engaged in unprofessional conduct by repeatedly representing to the Court that the plaintiff in this case was the deceased Tupou Netane (the father), even though the plaintiff is actually Tupou Netane (the son). The Court therefore refers Williamson to the Standing Committee for further investigation and discipline if warranted.
A. Williamson's Representations that Tupou Netane (the Father) Is the Plaintiff
In her motion to withdraw as counsel, Williamson initially represented to the Court that "Plaintiff" had terminated ...