When Uncivil Becomes Unethical - Jones Day · • Attorney settled a personal injury case without telling ... Conduct during trials • Age discrimination case ... “our federal

HARDBALL LITIGATION TACTICSWhen Uncivil Becomes Unethical

Civil Litigator’s Short CourseOctober 20, 2010

Edwin L. FountainJones Day

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Civility: Standards

Va. Rules Prof. Conduct

Preamble:

A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.

A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.

Rule 3.5(f):

“A lawyer shall not engage in conduct intended to disrupt a tribunal.”

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Civility: Standards

Va. Rules Prof. Conduct

Rule 3.4(j):

“A lawyer shall not . . . assert a position, conduct a defense, delay a trial, or take other action . . . when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.”

Rule 4.4:

“In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person.”

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Civility: Standards

Va. Code

§ 18.2-456

“The courts and judges may issue attachments for contempt . . . in the cases following: (1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice . . .”

Inherent powers of the courts

“[C[ourts of this Commonwealth have the inherent power to supervise the conduct of attorneys practicing before them and to discipline any attorney who engages in misconduct.” In re Moseley, 273 Va. 688, 643 S.E.2d 190, 195 (2007).

Includes the power to remove an attorney of record in a case, or to suspend an attorney from practicing in the particular court. Id.

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Civility: Standards

Federal:

28 U.S.C. § 1927:

“Any attorney . . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorneys’ fees reasonably incurred because of such conduct.”

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Civility

• Hostile takeover case in Delaware courts

• One of target’s directors deposed in Texas -- defended by Texas counsel not admitted pro hac

• Counsel “abused the privilege of representing a witness in a Delaware proceeding”– directed witness not to answer certain questions– was “extraordinarily” rude, uncivil and vulgar– interrupted questions, obstructed ability of questioner to elicit testimony– engaged in colloquies, objections that suggested answers to questions

• Cited Rule 3.5, Del. court rule 37, “inherent summary contempt powers”

• Sanctions could include– exclusion of counsel from attending the deposition– recessing deposition and reconvening before a master– assessing costs and counsel fees

Paramount Comm’cns v. QVC Network, 637 A.2d 34 (Del. 1994)

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Civility

• Physical altercation during sidebar

• Initially disqualified attorney and his firm. Later rescinded that order, but issued maximum $250 contempt fine and $50,000 in fees

• Supreme Court affirmed contempt finding under Va. Code § 18.2-456

– But revoked fee award as beyond court’s authority to supervise conduct of attorneys practicing before it.

Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007)

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Civility

• Attorney defending himself in a divorce proceeding

• Questioned opposing counsel’s faith, called her inept, accused her of violating the word of God, insisted on calling her by her ex-husband’s last name.

• Supreme Court found these statements did not address the legal issues in the divorce action, but personally attacked opposing counsel. – Affirmed the finding of a violation of Rule 3.4(j), holding that

“harassing ad hominem attacks on opposing counsel are prohibited under the Rule.” Id. at 380.

• For this and other offenses, Virginia State Bar disciplinary board imposed a 36-month suspension – (Supreme Court reversed some of the other charges and

remanded for reconsideration of sanctions)

Barrett v. Virginia State Bar, 269 Va. 583, 611 S.E.2d 375 (2005)

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Candor with the court, opposing counsel, third parties: Standards

Va. Rules Prof. Conduct

Rule 3.3(a):

“A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal; . . . or (4) offer evidence that the lawyer knows to be false. . . .”

Rule 4.1(a):

“[A] lawyer shall not knowingly . . . make a false statement of fact or law . . .”

Rule 8.4(c):

“It is professional misconduct for a lawyer to: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law.”

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Candor with the court, opposing counsel, third parties: Standards

Va. Code

§ 8.01-271.1:

“The signature of an attorney or party constitutes a certificate by him that (ii) . . . it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”

Accord Fed. R. Civ. Proc. 11

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Candor with the court, opposing counsel, third parties

• Plaintiff’s counsel threatened Rule 11 motion if defendant contested personal jurisdiction, asserting that a single sale of defendant’s product established presence in the jurisdiction.

• Plaintiff’s counsel did not inform the defendant that that single sale had been orchestrated by the plaintiff.

• Court: activity “may not have violated the relevant ethical codes,” but admonished counsel for the “lack of candor and incivility.”

Edberg v. Neogen Corp., 17 F. Supp. 2d 104 (D. Conn. 1998)

Jenkins v. Methodist Hospitals of Dallas, Inc., 478 F.3d 255 (5th Cir. 2007)

• Race discrimination case: plaintiff’s attorney misquoted his client’s affidavit, by inserting racially charged word “Boy” into the defendant’s employee’s alleged statement, “Boy, I would not let you treat my dog.”

• Trial court did not abuse its discretion in publicly reprimanding plaintiff’s attorney under Rule 11.

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Candor with the court, opposing counsel, third parties

• Lawyer misrepresented to the court that his clients were decedent’s next of kin to the decedent, when the decedent’s father was still alive and was heir to the estate.

• Conduct violated Rules 3.3 and 8.4. Lawyer required to pay $10,000 restitution and accept a reprimand.

F.L.C. v. Alabama State Bar, 38 So.3d 698 (Ala. 2009)

In re Ver Dught, 825 S.W.2d 847 (Mo. 1992)

• Attorney counseled his client not to mention her remarriage during a Social Security benefits proceeding, misled the court by referring to the client by her name prior to remarriage.

• Conduct violated Rule 8.4. Attorney suspended for six months

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Candor with the court, opposing counsel, third parties: Settlements

• Sexual harassment case, involving counter-claims against the plaintiff.

• Defense counsel misrepresented how much it had accepted in settlement of the counter-claims from a second plaintiff in a related action

• Plaintiff awarded attorney’s fees and costs incurred in obtaining production of the settlement agreement.

Sheppard v. River Valley Fitness One, L.P., 428 F.3d 1 (1st Cir. 2005)

In re McGrath, 468 N.Y.S.2d 349 (N.Y. App. Div. 1983)

• Attorney misrepresented his client’s insurance coverage

• Attorney publicly censured and suspended from practicing law for six months.

In re Warner, 851 So.2d 1029 (La. 2003)

• Attorney settled a personal injury case without telling the insurer that his client had died. Submitted claim with signature forged by his deceased client’s daughter.

• Court imposed a suspension of one year and one day.

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Candor with the court, opposing counsel, third parties: Settlements

Attorney statements regarding negotiating goals, willingness to compromise and other forms of “puffing” will not normally be considered false statements of material fact in the settlement context.

But see ABA Formal Opin. 06-438 (April 12, 2006)

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Conduct during trials

• Wrongful death action

• Plaintiff’s counsel:– made inappropriate references to the defendants’ wealth– asserted his personal opinion of the justness of his clients’ cause– made “prejudicial, vituperative and insulting references” to

defendants and opposing counsel– referred to his conversations with people who were not called as

witnesses.

• Third Circuit: curative instructions did not overcome the prejudice caused by counsel’s conduct, reversed the $585,000 judgment in favor of the plaintiff and ordered a new trial.

• Cited DR 7-106: “a lawyer shall not . . . [e]ngage in undignified or discourteous conduct which is degrading to a tribunal.”

Draper v. Airco, Inc., 580 F.2d 91 (3d Cir. 1978)

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Conduct during trials

• Age discrimination case

• Plaintiff’s counsel:– repeatedly continued questioning while objections were pending– read from documents not admitted– offered numerous sarcastic and insulting comments about witnesses– made frequent negative facial expressions in reacting to evidentiary

rulings– accused the judge in front of the jury of being biased against counsel – called one opposing counsel a “f***ing weasel” and another an “hijo de

puta”

• Trial court overturned jury verdict in favor of the plaintiff and ordered a new trial

• Colorado Supreme Court suspended counsel for one year and one day, for violations of Colorado Rules 3.5 and 8.4

Cadorna v. City and County of Denver, 245 F.R.D. 490 (D. Colo. 2007)

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Conduct during trials

Cadorna, 245 F.R.D. at 496

“our federal courts should ‘not expect advocacy to be devoid of passion’ and … every aggrieved party ‘is entitled to have someone speak with eloquence and compassion for their cause. Draper, 580 F.2d at 95. But zealous advocacy is not a license to run roughshod over the search for truth that the concept is designed to ensure.”

Polansky v. CAN Ins. Co., 825 F.2d 626, 632 (1st Cir. 1988)

“Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide ‘zealous advocacy’ for his client’s cause, we encourage this only as a means of achieving the court’s ultimate goal, which is finding the truth.”

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Conduct during depositions: Standards

Va. Rules Prof. Conduct

Rule 3.4(a):

“A lawyer shall not . . . Obstruct another party’s access to evidence or alter, destroy or conceal a document or other material having potential evidentiary value . . . A lawyer shall not counsel or assist another person to do any such act.”

Rule 3.4(d):

“A lawyer shall not . . . Falsify evidence [or] counsel or assist a witness to testify falsely.”

Discovery Rules

Va. S. Ct. Rule 4:12(a)Fed. R. Civ. Proc. 37(a)

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Conduct during depositions

• Attorney defending a deposition repeatedly interrupted the deposition to: – advise his client that he should feel free to stop the deposition to confer

at anytime; – confer with his client about a document that had been presented as an

exhibit; and – allegedly discuss the meaning of the word “document” with his client.

Id.

• Court: conferences between witness and lawyer are prohibited both during the deposition and during breaks

– “There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness formulate answers.”

• No sanctions awarded, but guidance provided going forward

Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993)

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Conduct during depositions

• During several depositions, defense counsel made repeated objections, instructed the witnesses not to answer certain questions, and left the deposition room while a question was pending.

• Court permitted plaintiff’s counsel to re-depose each witness, and to question the witnesses about discussions that may have taken place during the two breaks defense counsel improperly took.

Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527 (M.D. Pa. 2002)

• Plaintiff’s attorneys interrupted the plaintiff’s deposition by repeated instructions not to answer and coaching

• Court: attorneys violated FRCP 30(d)(1), and imposed sanctions under 28 U.S.C. § 1927

• Ordered redeposition of several witnesses, warned plaintiff’s counsel that future misconduct could result in dismissal.

Armstrong v. Hussman Corp., 163 F.R.D. 299 (E.D. Mo. 1995)

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Conduct during depositions

• Pro se lawyer-litigant who brought a personal injury suit

• At his deposition, attorney made personal attacks against defense counsel during a pretrial deposition, refused to answer numerous relevant and appropriate questions, and gave argumentative responses.

• Trial court did not dismiss the case, but ordered a magistrate to supervise depositions. On appeal, the appellate division reversed:

– “Dismissal is appropriate when the movant conclusively establishes that the frustration of discovery was willful, contumacious, or due to bad faith. . . . [P]laintiff’s behavior was so lacking in professionalism and civility that dismissal was the only appropriate remedy.” 630 N.Y.S.2d at 47.

Corsini v. U-Haul Int’l, Inc., 630 N.Y.S.2d 45 (App. Div. 1995)

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Conduct during depositions

• Plaintiff’s counsel instructed plaintiff not to answer questions, improperly claimed attorney-client privilege

• Similar conduct at 2nd deposition, even after court had granted a motion to compel, and with instruction that questions be answered without interference from counsel.

• Threatened opposing counsel if counsel attempted to use a telephone in plaintiff’s counsels’ office to initiate a conference with the judge.

• Trial court found that counsel had violated FRCP 16 and 37, as well as 28 U.S.C. § 1927, and dismissed.

Castillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594 (C.D. Ill. 1992)

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Conduct during depositions

• On review by a 3-judge disciplinary panel of the court, the panel invoked its “inherent power and responsibility to supervise the conduct of attorneys who are admitted to practice before it.”

• Panel found that counsel attempted to mislead the court as to the motives behind his conduct, expressed no recognition of wrongdoing, and provided no assurance he would not act the same way in the future.

• Panel found violations of numerous Illinois DR:

– 7-102(a)(1): taking actions that served merely to harass another– 7-101(a), 109(a): suppressing evidence counsel had a legal obligation to

produce– 7-101(a)(C): engaging in offensive tactics, failing to treat others with courtesy

and consideration– 1-102: engaging in conduct prejudicial to the administration of justice

• Attorney suspended from practice before the court for a minimum of one year.

Castillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594 (C.D. Ill. 1992)