North Carolina Lawyer Sanctioned For Discovery Violations In Her Own Child Custody Case

It is common in family law for litigants to use non-compliance with Discovery Rules as a tactic for gaining unfair advantage. Two examples are withholding evidence from the opposing party requesting it and otherwise engaging in dilatory behaviors.

With regard to dilatory tactics, the non-compliant party might be trying to bleed the opponent of the opponent's finite funds for litigation; or the non-compliant party might be trying to "ambush" the opponent just before trial, by withholding evidence right up until the eve of trial.

Although there are potential consequences for non-compliance with Discovery Rules, saddling your non-compliant opponent with those consequences typically requires you to expend additional resources just to present the issue to the judge, and even if you were to prevail on your arguments at that hearing, the most common "sanction" family law judges elect is to merely order your non-compliant opponent to pay you for the additional costs and attorney's fees you incurred to have that hearing. It is far less common, especially in family court, for the judge's elected consequences to go beyond that mere cost-reimbursement penalty.

So, for the non-compliant party, if the "value" to the non-compliant party of flouting the Discovery Rules far exceeds the potential, and most likely, consequence, then it is easy to understand, from a practical standpoint, why the non-compliant party would have intentionally violated Discovery Rules. It would be as if the explanation for frequent robberies was that the only potential consequence for getting caught having robbed a bank is 5-minute timeout at recess. In such a scenario, you would expect bank robberies to be frequent, because the consequence for getting caught is comparatively negligible to the potential "reward" of getting away with the bank's cash.

Attorneys who practice family law know this well, which is why family law attorneys often condone, even not outright coach, non-compliance with Discovery Rules by clients.

Now, what would you expect to happen when the lawyer herself is the litigant in a family law case? Would you expect the same kind of gamesmanship from the lawyer-litigant that you would expect to see from the lawyer's client following that lawyer's advice?

We actually get to see this scenario in action in the 2021 family law case of Gass v. Beavers in North Carolina. It was a child custody lawsuit involving an attorney-parent and a non-attorney-parent. The attorney-parent engaged in tactical non-compliance with Discovery Rules. After a hearing before the judge, the attorney-parent was found to have violated Discovery Rules and was ordered, as a sanction, to pay $2,000 of the non-attorney-parent's attorney's fees associated with the non-attorney-parent's motion to compel.

From the outside looking in, that $2,000 "consequence" seems to pale in comparison to the value of what was otherwise at stake in the litigation: custody of the litigants' child. So, to the extent that the attorney-parent's Discovery Violations contributed to the attorney-parent obtaining better child custody terms than she otherwise would have, it would be hard to criticize the attorney-parent's decision to violate Discovery Rules as having been foolish. That decision might have even been "smart," unfortunately, given how the family law judge was expected to rule, and did rule, on the issue of the attorney-parent's non-compliance.