That escalated … but not all that quickly.

You’ve likely already read something this week about the Florida lawyer who was disbarred last month as the culmination of his “cumulative and escalating misconduct,” so I don’t know that I have anything truly unique to offer about the situation.

But because I so clearly remember talking about the first event in his series of bad behavior in seminars I did about 8 years ago, I feel compelled to write about his disbarment.

Back in 2010, an opinion came out that suspended Robert Ratiner for 60 days over an incident involving a highly aggressive and inappropriate reaction to another lawyer putting a sticker onto his laptop during a deposition.

That case garnered some substantial legal media attention because the Florida Supreme Court described Ratiner’s conduct as something that ought to be viewed in professionalism courses to teach lawyers how not to behave.  In that incident which happened in 2007, Ratiner responded to the other lawyer’s placement of the exhibit sticker by first trying to physically run around the table to where the lawyer was and then, instead, forcefully leaned over the table, angrily yelled at the other lawyer, and through the wadded up sticker at him.

Between that incident and the latest, Ratiner received a three-year suspension in 2015 flowing from more litigation behavior evidencing problems both with inter-personal skills and with recognizing and respecting physical boundaries.  In that case, Ratiner first called opposing counsel a “dominatrix” during a document review session and, on the following day, tried to grab a document away from her which prompted the involvement of a security guard.  That event happened in October 2009.

The February 2018 order of disbarment (which you can read here), unlike the prior two incidents, involved conduct inside the courtroom.  Ratiner was accused of loudly kicking the table of other counsel during a hearing, saying “lie, lie, lie” during the cross-examination of one of his law partners, and wrinkling and throwing documents in court.

The ethics rule Ratiner ran afoul of is Florida’s slight variation on the traditional Model Rule 8.4(d) about not engaging in conduct prejudicial to the administration of justice.  That rule in Florida reads:  “A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers.”

Perhaps remarkably, the initial proposed discipline for this event was another 3 year suspension rather than disbarment.  The Florida Supreme Court decided, however, that disbarment was required.

As the Florida Supreme Court explained:

Ratiner has denied the existence of such objectionable, disrespectful conduct over the years, even in the face of videotaped evidence and witness testimony. His argument or belief that said conduct constitutes the zealous representation of his clients is completely unacceptable.


In cases where lawyers have previously been disciplined for engaging in misconduct of a similar nature, the Court has generally taken an incremental approach in imposing discipline, increasing the severity of discipline in each instance.


Ratiner’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession.

Other than what is set out in the various opinions, I do not know anything more about this lawyer’s situation.  Although none of the opinions include anything to clearly signal underlying, treatable problems plaguing this lawyer,  this certainly feels like a sad story that has issues of lawyer wellness at its heart.

It also involved a pattern of conduct spread out over a fairly long time (though not as long as it feels at first when you have 10 years elapsing between the sticker-throwing incident that prompted the first, short suspension and the disbarment) when you think about it in terms of “escalation.” Ratiner practiced law for 28 years before being disbarred.  Almost 4 years passed between the deposition sticker row and the table-kicking courtroom incident.

Nevertheless, it’s as good a reason as any to remind people in our profession to add this report from the National Task Force on Lawyer Well Being to your reading pile and to actually read it.  Particularly, when news in the world of lawyering brings developments like this shooting — a situation which I would say truly involves quick and very scary escalation — and the notion that this odious lawyer is out there representing our profession to the public.

Both the java fight and the nut dispute are kind of bananas.

If you spend any time on social media these days, you may have noticed how irritable folks are.  There are lots of reasons for it, of course.  We live in stressful times.  Practicing law has always been a high-stress endeavor as far as professions go; thus, cries for more civility in the practice of law have been going on for many years and likely will continue to go on for many more years to come.

I’ve offered before on this blog my overarching “don’t be an ass” theory as it relates to practicing law but lawyers are people and people are people, so … sometimes people don’t get along.

There have been two relatively recent examples of lawyers not getting along, actually getting into dust-ups that have become pretty high-profile (or at least they were a few weeks ago) and that seem pretty hard to believe all involved wouldn’t wish for a chance at a simple do over.

One of them was talked about most frequently as being a coffee fight, but reads more like something that was already in the problem range before the hurling of coffee ever came into the picture.  The dispute happened during a deposition so in addition to the he said/she said aspects of what went down, there was a court reporter present.  The court reporter’s version of events grabs parts of each of the competing stories and likely gets the closest to the accurate version of events — the coffee was iced coffee and it likely was hurled at the other lawyer.  Doesn’t change the fact that it’s really bad behavior but at least it makes it much less likely that anyone was at risk of burns from scalding coffee.  You can read about all the various filings and back and forth here, here, here, and here if you’d like.

The other dispute that got lumped into my reading pile with the java jousting is both more and less bizarre at the same time.  As it all appears to turn over false allegations about how one lawyer acted upon learning about the existence of a nut allergy on the part of another lawyer’s paralegal.  You can read a bit more about that weirdness here.

Interestingly (although maybe that’s the wrong choice of word), assuming away any criminality in any of the conduct), the ethics rules that often come into play in dust-ups of these sorts are RPC 3.4 (at least as to the parts of them that relate to battles over obstructionist discovery tactics and the like), RPC 4.4(a)’s prohibition on using means when representing a client “that have no substantial purpose other than to embarrass … or burden a third person,” and RPC 8.4(d) prohibition on conduct “prejudicial to the administration of justice.”  Interestingly (and here it is definitely the apt word), the coffee fight at least contains some undertones of issues that might be in the wheelhouse of the ABA’s new RPC 8.4(g),

Speaking of disputes, but not disputes between lawyers and not disputes involving the weaponizing of any ingestible foodstuffs, I will be doing a national teleseminar tomorrow along with Sue Friedberg who serves as Associate General Counsel of Buchanan Ingersoll & Rooney on “Ethics and Disputes With Clients.”  You can sign up for it through a number of different channels (check with your local bar for example) like through this link in Oregon or this link in Nebraska or this one in Missouri.

Mindless Pedantry

First, yes, “Mindless Pedantry” would make a good band name.  Other than that though, it is never a good thing.

In the practice of law, attention to detail is a valuable quality, but mindless pedantry certainly is not.

You are probably not an experienced litigator if you cannot remember a time when, faced with responding to a difficult discovery item, you haven’t been thrilled to notice some problem with wording, grammar, punctuation, or other technical deficiency in language usage in the question or request propounded to your client that you could use to your advantage.  We’ve all been there, and, to some extent the measure of our professionalism, is how you have dealt with the situation.

If the flaw is in a request for admission, you are likely simply obligated to deny the request based on the wording problems.  If it is an interrogatory or a request for production of documents, then you’ve likely done your best to point out the wording issue but not solely stood on that shaky ground alone.  You’ve likely either also provided a response that assumes the questioner intended to say “x” or, if you really needed the extra time to figure out the correct answer (and to figure out just how damaging the correct answer might be to your client’s case) then you still likely at least volunteered that if the questioner meant “x” and would confirm it, that you’d be happy to provide a supplemental response answering “x.”

What you hopefully have not engaged in is the mindless pedantry for which a firm was taken to task earlier this month by the Trademark Trial and Appeal Board when that body excoriated counsel for using an “obvious” typo as “an excuse to become pedantic, unreasonable, and uncooperative.”  The underlying litigation involves a trademark dispute that has been ongoing for several years now in which Cadbury seeks to cancel a U.S. trademark that has been registered for the name “Bournvita,” because Cadbury still has a brand of chocolate drink – though only big in India, Nigeria, and parts of the developing world — using that name.

In a set of requests for production of documents that (for reasons enumerated below) were otherwise quite obviously propounded upon Cadbury, the attorneys for the party with the U.S. trademark – Meenaxi Enterprise, Inc. — put the wrong name in some prefatory language saying these requests were being served on Venture Execution Partners (a third-party having no role in or bearing upon the dispute).  Cadbury ultimately took the position in response to a motion to compel that, because of this typographical error [presumably caused by the lawyers cutting and pasting from a similar document filed in some other matter against the Venture Execution outfit], the discovery requests were not actually directed to Cadbury and, thus, Cadbury had no legal obligation to respond at all.

That approach did not go well.

In the end, Cadbury’s lawyers were chastised pretty sternly and essentially lost the right to make any substantive objections to the discovery requests to which they have now been compelled to respond that they might otherwise have been able to raise.  The level of pedantry involved can be grasped (and marveled at), with a few surrounding facts described in the ruling:

  • The requests were served (by hand delivery on counsel for Cadbury) at the same time and in the same package as interrogatories directed to Cadbury that didn’t suffer from the typo, and to which Cadbury filed timely objections.
  • The requests incorporated certain “definitions” set forth in the interrogatories, where “Petitioner” was defined to be Cadbury.
  • The requests were otherwise properly captioned in the case being litigated, including the required reference to the correct registration number of the trademark at issue.

As if that all weren’t bad enough, Cadbury’s counsel really, really did not help themselves out by the fact that before providing their response/objections to the interrogatories, they had asked for, and received, four extension of time to respond “discovery.”  In none of those exchanges did counsel indicate they were seeking the extension only for the interrogatories or otherwise mention that they did not believe there were requests directed to them that required a response.

Although the case makes no mention of this point, it is worth taking the opportunity to remind folks that in Tennessee, for example, our RPC 3.4(d) makes it unethical for a lawyer not only to “make a frivolous discovery request,” but also to “fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

You can read the full decision here.