Oh, Behave! No Injunction Against Lawyer-on-Lawyer Violence Absent Evidence of a Threat of Future Harm

The Court of Appeal has reversed and vacated an anti-harassment injunction issued in favor of one attorney and against another, finding that a single instance of violence, threats or harassment is insufficient to support issuance of an injunction absent a showing of a threat of future harm.

Russell and Douvan were attorneys on opposite sides of a dispute. Following a hearing, Douvan, according to Russell, followed Russell into an elevator and grabbed his arm. Russell sought an injunction under California’s anti-harassment statute, Code of Civil Procedure §527.6. Although the underlying case had concluded by the time of the injunction hearing and both attorneys acknowledged that they did not have anything otherwise to do with one another, the trial court concluded that a battery had been committed and issued the injunction. Douvan appealed, and the Court of Appeal concluded that the trial court should not have issued the injunction.

The appellate court’s reasoning was simple: even when an injunction is authorized by statute, the remedy can only operate prospectively. Injunctions deal with future harm, not with events in the past. Absent evidence that there was an actual threat of future wrongdoing, no injunction could be justified.

When the [trial] court concluded that a single act of unlawful violence required the issuance of an injunction, it construed its role too narrowly. There may well be cases in which the circumstances surrounding a single act of violence may support a conclusion that future harm is highly probable. That finding, however, must be made and the court failed to do so here.

The appellate court was silent on the ethical or disciplinary consequences of even a single act of lawyer-on-lawyer violence. We trust that the Court does not mean to be understood as endorsing a “one free bite” rule for attorneys.

The Court's decision in Russell v. Douvan (Sept. 30, 2003), Case No. A096261, can be found at these links in PDFand Word formats.

[Thanks to Ken Lammers at the CrimLaw blog and to The Southern California Law Blog for their links back to this post. Both are well worth your while, if you aren't already checking them regularly.]