Lest one think that the Court of Appeal takes lightly whether to admonish an attorney on appeal, read this 25-page opinion. Which is all about whether to do so.
The Court of Appeal decides not to publicly admonish Davis attorney S. Lynne Klein. But, to a degree, this is all sound and fury. The Court of Appeal clearly doesn't like a critical decision that Ms. Klein made. Nor, to be completely honest, the way in which she made and subsequently defended it. And the Court of Appeal is not shy about saying so. Either initially (in generating an OSC) or in the current opinion.
Given the fact that the Court of Appeal is publishing an opinion in which it in essence admonishes Ms. Klein, the court's decision therein not to publicly admonish Ms. Klein might in one view seem small solace.
Nonetheless, there's a big difference between being "publicly admonished" and being publicly admonished, as anyone with a background in bar disciplinary decisions would eminently appreciate.
I actually think that what the Court of Appeal did here makes a fair amount of sense. There was a problem in this case. Truly, there was. A problem that was very serious, and the resolution of which in no small way could potentially determine whether a child lives or dies.
That put the attorney in a tough position. But it puts the Court of Appeal (as well as the trial court) in a tough position as well. So it's an area in which we rightly care. Deeply.
Sure, we should keep in mind that the attorneys doing these cases have to confront these issues daily. For a degree of compensation that's hardly munificent. So we should give them some slack.
But not infinitely. Because the welfare of the children is even more important than the feelings of counsel. So we want to take these cases seriously. Especially when they do not go the way we think they reasonably should.
