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September 6, 2012

People v. Whitus 2012 WL 3870520

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The Appellate Division of the San Luis Obispo County Court asks the State Bar to consider discipline based on an attorney’s conduct at oral argument.

Darryl Genis represented Ronald Whitus in a criminal matter.  Genis failed to appear at several readiness conferences after the court granted multiple continuances and ordered his personal appearance.  The trial court ultimately set the matter for an Order to Show Cause and imposed monetary sanctions.

Genis argued on appeal he did not fail to appear because substitute counsel appeared for him; there was no valid court order requiring personal appearance on the dates indicated; and the trial court was prejudiced against him and should not hear any of his cases, or, for that matter, any criminal cases.

The Appellate Division held it was readily apparent that Genis, not a substitute, was to personally appear at the readiness conferences.  Genis was provided an electronic copy of the OSC more than two months prior to the hearing, meeting due process requirements.  Genis did not present any evidence of judicial bias other than the sanctions order itself.  The trial judge, though frustrated with Genis’s conduct, was always respectful and polite, even in the face of patently insulting comments from Genis.

The Court found Genis’s oral advocacy was a parade of insults and affronts.  Genis demanded that the deputy district attorney be removed from counsel table; rudely insisted that the court state it was not conducting a contempt proceeding; referred to the Appellate Division as “the fox watching the hen house;” implied the judges discussed his case and demanded each justice disclose whether he had discussed the case with the trial court; condescendingly opined judges show less deference to defense attorneys than to prosecutors; and repeatedly referred to the trial judge by his first name.  Genis castigated, disparaged, and threatened the trial judge.  The tone of Genis’ argument was confrontational, accusatory and disdainful.

Genis’s advocacy demeans the profession, lowers public respect, and, if left unaddressed, wrongly conveys the impression that it is acceptable behavior or effective advocacy.  The Court ordered the clerk to send a copy of the opinion to the California State Bar for consideration of discipline.

Comment: This is not the first time this year that a reviewing Court has suggested the State Bar consider discipline.  There is a distinction between ardent advocacy and uncivil behavior.  The latter may well lead to a disciplinary investigation.



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