Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
|Can A Lawyer Argue The Need For Advice Of Counsel?|
Can A Lawyer Argue The Need For Advice Of Counsel?
In general, judgments in favor of a plaintiff result from a verdict by judge or jury or because a defendant enters into a stipulation for judgment after a complaint has been filed and served. There exists, however, an infrequently used law in California which permits a judgment to be entered without any action having been filed. Such a statutory procedure is called a Confession of Judgment. The statute provides that "A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both." Only the debtor may make the confession; the debtor's attorney cannot enter into a Confession of Judgment on behalf of his client. Although a debtor must personally confess judgment, a debtor may do so only if "an attorney independently representing the [debtor] signs a certificate that the attorney has examined the proposed judgment and has advised the defendant with respect to the waiver of rights and defenses under the confession of judgment procedure and has advised the [debtor] to utilize the confession of judgment procedure." The certificate must be filed together with the Statement of the debtor confessing judgment. In a recent California case, a fellow in Yolo County obtained an unsecured $500,000 line of credit from the First Northern Bank of Dixon. As part of the transaction, the debtor entered into a Confession of Judgment to secure the loan. The debtor, an attorney at law, signed a document indicating that he had "examined the accompanying Confession of Judgment and the proposed Judgment, and with full knowledge and understanding of the waiver of rights and defenses being granted under the Confession of Judgment Procedure do hereby agree to [use] the Confession of Judgment procedure." The attorney debtor also provided a cover letter in which he stated that he had never been a practicing attorney and "had not received advice from any other attorney regarding the consequences of executing the declaration". The attorney subsequently sought an injunction and declaration that the Confession of Judgment was invalid because it was not accompanied by the required certificate of an attorney independent of both the attorney-debtor and the Bank. The Court of Appeal agreed and determined that the Confession of Judgment was invalid, notwithstanding the fact that the debtor was an attorney at law. Although the statute clearly requires an independent attorney representing the debtor to sign a certificate declaring his advice to the debtor, the bank argued that such a requirement was an absurdity, noting "that the state allows laypeople to act as their own attorneys even during the penalty phase of a capital criminal proceeding." The Court rejected this argument as flawed since in such circumstances, before a defendant may proceed in propria persona, there must be a judicial determination of the defendant's "knowing, voluntary, and intelligent waiver of the right to counsel. . . ." The Court further noted that the Legislature, in providing for the Confession of Judgment procedure, mandated the requirement of such independent advice and the filing of a certificate demonstrating such independent advice. The Court concludes, "The statute on its face does not exclude attorneys as a class from its protection, and we are not about to engraft such exception by judicial fiat." The moral of the story? Even an attorney has the right to an attorney from time to time!
[This column is intended to provide general information only and is not intended to provide specific legal advice; if you have a specific question regarding the law, you should contact an attorney of your choice. Suggestions for topics to be discussed in this column are welcome.] Reprinted from New Era Magazine Myles M. Mattenson © 1998-2002