Incivility Results in Public Sanctions

I’ve blogged often on civility.

In Don’t Be a Jerk, I argued that effective advocacy and civility aren’t mutually exclusive.

Later, in Advoacy, Decorum, and Grover, I noted (for the first of what would be many times) my opinion that there’s a correlation between civility and wellness.

Most recently, in So Your Client Thinks She’s Funny, I wrote about the opinion in which the Delaware Supreme Court took the opportunity “to remind counsel that they have a responsibility to intercede and not sit idly by as their client engages in abusive deposition misconduct.”

Which brings me to today’s lesson.

Two days ago, Mike Frisch of the Legal Profession Blog posted No Alibis. It’s the story of a disciplinary opinion that the Louisiana Attorney Discipline Board issued on November 4.

The LADB’s opinion is here.  The money paragraph:

• “Common sense dictates that an attorney must know that his actions will disrupt the court if he, during the course of a hearing or trial, threatens to ‘punch the shit’ out of opposing counsel, even if arguably he was provoked by opposing counsel. To hold otherwise would provide an excuse to any attorney engaging in such behavior by simply saying, in effect, ‘I did it, I know it was wrong, but I didn’t intend to do it'”.

The lawyer received a public reprimand.  Earlier this year, the other lawyer involved did as well.  Per the LADB’s most recent opinion:

“With one exception, discussed below, the facts are not in dispute. On August 20, 2018 Respondent appeared in Orleans Parish Criminal District Court, Section “F”, Judge Robin Pittman, representing a Mr. Ron Edwards on the State’s motion for a bail increase. Mr. Iain Dover, Assistant District Attorney, appeared for the State.

During argument on the State’s motion, Respondent stated to the Judge that the victim, Mr. Edwards’ girlfriend, had on a prior occasion brought false charges against Mr. Edwards and ultimately pled guilty to filing a false police report.

In response to Respondent’s statement about the victim, Mr. Dover stated:

Excuse me, sir. You’re a liar.

Mr. Spears responded: And I will punch the shit out of you if you call me a liar, again.

Mr. Dover doubled down, after being challenged by Respondent to call me a liar again,
stating: Liar.

At this point in the transcript of the August 20, 2018 hearing, the court reporter wrote:

Mr. Spears: (Raises fist up to Mr. Dover)
Mr. Dover: (Raises arm up in a blocking motion)

Finally, Respondent stated: …but perhaps we can settle this outside the courtroom.”

One might argue that, with each lawyer receiving a public reprimand, this one ended in a draw.  I’d disagree.  To me, when incivility is met with incivility, nobody wins.  Not the lawyers, their clients, or the profession.

So your client thinks she’s funny?

Rule 3.5(d) prohibits lawyers from engaging “in undignified or discourteousness conduct which is degrading or disrupting to a tribunal.”  I’ve often called attention to Comment [5], which reads:

• “The duty to refrain from degrading or disrupting conduct applies to any proceeding of a tribunal, including a deposition.”

Tom Little frequently appears on this blog’s #fiveforfriday Honor Roll.  Don’t worry, Tom isn’t suspected of misbehaving at a deposition.  Rather, earlier this week, Tom tipped me off to a story about a decision from the Delaware Supreme Court that addresses a lawyer’s duties when a client disrupts a deposition.

The story, which is here, ran in The Bencher, a publication of the American Inns of Court.  It’s by Francis Pileggi, an attorney who runs the Delaware Corporation and Commercial Litigation Blog and who often blogs on issues related to legal ethics.

The opinion issued in In re Shorenstein Hays-Nederlander Theaters LLC Appeals.  (Try saying that 3 times fast.)  The case involved a theater company’s quest to prevent another from staging two productions.  The underlying facts & legal issues are irrelevant to this post, but for the fact that one of the productions, Dear Evan Hanson, stumped me on Final Jeopardy during this year’s Teen Tournament.

Anyhow, I digress.

The case is complicated: it took the Delaware Supreme Court 50 pages to reach its conclusion.  It’s what happened next that matters here.

The Court attached an “Addendum” to its opinion.  It begins on page 51.  The opening paragraph:

• “Finally, we comment on one last point that was addressed by the trial court, but is
  not an issue raised by the parties on appeal, namely, the deposition misconduct by Carole Shorenstein Hays. In Paramount Communications Inc. v. QVC Network Inc.,
  this Court addressed, in an Addendum, deposition misconduct by a lawyer at a deposition. This Addendum addresses a less frequently discussed corollary concerning the duty of counsel who is faced with a deponent’s inappropriate conduct at a deposition.”

Beginning on page 53, the Court included excerpts of the deposition given by a Mrs. Hays.  The excerpts continue for 14 pages.  I can’t do them justice.  I think it’s better to provide you with the Court’s first sentence following the excerpts:

• “This is a representative but incomplete identification of Hays’s ridiculous and problematic responses to questions.”

Then, the Court noted with disapproval the fact that the lawyer defending the deposition refused to put a stop to the deponent’s tomfoolery which, per the Court, “made a mockery of the entire deposition proceeding.”  Thus, the Court took the opportunity “to remind counsel that they have a responsibility to intercede and not sit idly by as their
client engages in abusive deposition misconduct.”  The Court added:

• “Depositions are court proceedings, and counsel defending the deposition have an
  obligation to prevent their deponent from impeding or frustrating a fair examination. Although counsel can be caught off guard by a client’s unexpected, sanctionable outburst, that is not what happened here. Rather, Hays’s flippant, evasive, ridiculous answers and speech-making continued throughout the entirety of the deposition, which began at 9:38 a.m. and concluded at 7:13 p.m. An attorney representing a client who engages in such behavior during the course of a deposition cannot simply be a spectator and do nothing”

Finally, the Court suggested that lawyers use the case as a teachable moment:

• “Perhaps this episode can be used positively as a lesson to those training new lawyers on deposition skills. Lawyers have an obligation to ensure that their clients do not undermine the integrity of the deposition proceedings by engaging in bad faith litigation tactics; they cannot simply sit and passively observe as their client persists in such conduct. Given the restrictions on conferring with a client during deposition proceedings, these points obviously should be addressed beforehand in the deposition preparation.”

I understand that the duties of competence & diligence include prepping a client for a deposition.  And I think we’re all familiar with the anecdote about advising a client to listen to the question and answer the question that was asked without providing additional information. For example. the client who should answer “yes” when asked “do you know what time it is?”

But as the Delaware decision makes clear, that only goes so far.  In short, The Shaggy Defense – (“it wasn’t me”) – ain’t gonna cut it if you’re asked why you allowed your client to do what the rules prohibit you from doing.

For those interested, I’ve pasted in portions of the deposition transcript below.

Q. How much time did you spend with your counsel to prepare for the
deposition?
A. Sufficient.
Q. How much is sufficient?
A. The appropriate amount needed.
Q. Can you give me an estimate of the amount of time?
A. It was completely enjoyable.
Q. How many times did you meet with your counsel to prepare for the
deposition?
A. Preparation is always a good thing.
Q. That wasn’t my question. How many times did you meet with your
counsel to prepare for the deposition?
A. I met with them – I’m not understanding the question.
Q. You told me you met with your counsel to prepare for the deposition.
A. Sure.
Q. How many times?
A. Well, see, I think of time as a continuum. So I think I met with them from
the beginning to the end. And the beginning was the start, and then there
was the rehearsal, and then there was the preview, and now it’s what I think
of as the performance. So, in my mind, I’m answering what you’re asking.
If you could be more specific. Do you want hours?
Q. Yes.
A. Oh, I don’t wear a watch. So I know the sun coming up in the morning
and the moon coming up at night.
. . .

Q: Did you review any documents to prepare for the deposition?
A. Oh, certainly.
Q. What documents did you review?
A. The ones that were put in front of me.
Q. What were they?
A. Documents.

. . .

Q. Did you graduate from NYU?
A. No.
Q. Did you –
A. Well, maybe. It’s unclear.
Q. You’re not sure?
A. You mean do I have a diploma? No. Did I receive enough credits to
graduate, is that your question?
Q. That’s a question, that’s fine.
A. Is that your question?
Q. Sure.
A. You know, it’s been said that I have –
Q. It’s been said that you have what? That you have graduated?
A. It’s been said that.
Q. Do you have a degree from NYU?
A. Do I have something like a piece of parchment?
Q. No. Did you finish the requirements –
A. Did I receive –
Q. If you could wait until I finish my question.
A. Sorry.
Q. Did you complete the coursework and earn enough degrees [sic] to earn
a degree? I don’t care if you have a piece of paper on your wall. I want to
know, did you earn a degree?
A. I don’t recall.
Q. You don’t recall whether you have a degree from NYU?
A. Correct.