The world needs a “healthy dose” of lots of things.

Frankly, civil behavior by lawyers toward other lawyers certainly is on the list of things the world needs a healthy dose of, but, well, let’s just say maybe it’s not a top-10 item on the list.

So, the point of today’s post is not to be the guy who claims that lawyers shouldn’t have to be civil to each other. I am not that guy. Civility is a net positive in the profession.

What I do want to write a bit about though, because discussions about the need for increased civility in the legal profession are all the rage right now (and, in fact, I’m going to be part of a panel discussion later this month on the topic, the difference between reminding lawyers of the need to treat human beings with respect and “weaponizing” the idea of civility to hamstring the ability of a lawyer to pursue a client’s claims and rights, particularly when that can tend to unfairly prejudice the “Davids” of the world in favor of the already-favored “Goliaths.”

I also want to stress the fact that there is already a rule of professional conduct that is sufficient to address those aspects of incivility that should be treated as unethical.

Let’s talk in varying degrees of detail about three of the most recent news items driving the civility discussion and identify which one of them I have some real problems with.

The quote in the title of today’s post comes from this ABA Journal article about remarks made by the Chief Justice of the West Virginia Supreme Court in connection with that court’s proposal to amend the attorney oath of office to better mandate civility.

Much more media attention rightly has been focused upon this ruling from the D.C. District Court admonishing a high-profile Big Law attorney (who actually had to step away from a Presidential appointment in the new administration because of this matter) for her characterizations of the conduct and demeanor of opposing counsel during a deposition, a videotaped deposition. Whether this ruling is correct in terms of the application of Rule 11 is not something I want to spend any time discussing. Whether this ruling properly points out the kind of things a lawyer shouldn’t do is.

The core description of the situation can be understood from the court’s opinion itself which indicated that each of the following were statements made by lawyers in the record about the conduct of their opposing counsel during the deposition but for which the Court could find no support in viewing the videotape of the deposition: opposing counsel was “agitated and combative,” opposing counsel “lashed out at the witness,” opposing counsel “became unhinged … and repeatedly attacked and baselessly threatened to seek sanctions against the witness and counsel,” opposing counsel engaged in “browbeating and disrespectful behavior,” opposing counsel was “indignant and adversarial,” “agitated and aggressive,” and opposing counsel “demonstrated a general lack of respect towards a professional adversary.”

Mischaracterizing the way another lawyer has behaved is certainly troubling conduct. While perhaps some of the descriptors are entirely subjective, not all of them are. The fact that, as the court points out, the deposition in question was videotaped also makes it pretty hard to feel any sympathy for the lawyer who ended up sanctioned after they persisted in trying to say that the descriptions of the other lawyer, which everyone else seems to agree were not reflected on the videotape, were somehow justified.

But I also want to be clear about what the case did not involve which is an even more toxic approach to mischaracterizing the behavior of another lawyer but which only “works” if the deposition isn’t being videotaped. We likely all have encountered a lawyer who, back in the days when videotaping depositions was a much less frequent experience, would make statements and assertions about events to make a “record” on paper of something happening that was not actually going on. Statements such as “please stop raising your voice at the witness,” or “you need to calm down, you’re way too worked up,” “I’d ask you to stop rolling your eyes at the witness’s answers,” or “what was that gesture? No one appreciates that” and the like can be a “go to” approach for trying to gaslight later readers of an otherwise dry deposition transcript.

Now, contrast the D.C. case with this ruling from a district court judge in Florida demanding that attorneys representing both sides in a lawsuit against a cruise line refile past filings after removing all of the language that the judge found inappropriate. (Former APRL President Jan Jacobowitz has written a bit about this ruling here.)

In the Florida case, the court explained its concerns as follows:

The Florida Bar Oath of Admission, which every attorney
licensed in the state of Florida swears to obey, states in part,

To opposing parties and their counsel, I pledge
fairness, integrity, and civility, not only in court,
but also in all written and oral communications. I will
abstain from all offensive personality and advance no
fact prejudicial to the honor or reputation of a party
or witness, unless required by the justice of the cause
with which I am charged.

The Florida Bar’s Creed of Professionalism provides further
clarity on the manner in which attorneys should conduct themselves
in the practice of law. It states, in part, “I will abstain from
all rude, disruptive, disrespectful, and abusive behavior and will
at all times act with dignity, decency, and courtesy.”

Upon review of the record and the parties’ filings, this Court
notes that the conduct displayed by counsel for both Plaintiffs
and Defendant runs afoul of the tenets of professionalism set forth
by the Florida Bar.

The problem, of course, comes in reading further the examples that the court cites which almost exclusively do not involve the lawyers denigrating or being uncivil to each other, but rather involve characterizations by lawyers of the conduct of the opposing party itself. For example, the Florida judge took umbrage at:

First, Plaintiffs dedicate an entire section of their Motion
for Partial Summary Judgment to what they entitled “ROYAL
Defendant of “lying to authorities,” “attempting to deceive this
Honorable Court,” and engaging in, “corporate misconduct [which]…
appears to know no bounds” [D.E. 128]. Plaintiffs further accuses
Defendant’s Captain of lying to the U.S. Coast Guard, and state
that the Defendant “doubled down on the Captain’s lie to the Coast
Guard by again lying to a United States Federal District Court.”
Plaintiffs further claim that Defendant’s ‘lies’ were “the genesis
of the Puerto Rican authorities ultimately pressing (baseless)
criminal charges against Mr. Anello,” and ultimately accuse the
Defendant of making “merciless efforts to frame an innocent man,
intentionally destroy evidence, and mislead this Honorable Court
(and the U.S. Coast Guard and the Puerto Rican authorities).”

The problem with most of the language that this court found problematic is that the court seems unwilling to acknowledge that there is fundamentally a difference between saying that lawyers should generally treat other lawyers, as well as other people involved in proceedings, with civility and essentially hamstringing a lawyer from being able to pursue a client’s case. Now, admittedly, I have no insight into any of the players in the case nor any reason to know if anyone was not telling the truth, but, fundamentally, the notion of civility must not be used to prevent lawyers from being able to point out when an adverse party is actually lying.

There are, in short, very few ways to inform a court that you believe that your client’s litigation adversary is lying in a way that is guaranteed to be viewed as “civil.” There is no doubt that accusations of lying are made far too casually by members of our profession, but that does not mean that there are not instances when litigants are, in fact, lying and lawyers must be free to plainly and directly say so when their client needs them to do so.

And it is for that reason that I tend to be wary of efforts to expand existing ethical prohibitions, or adopt new rules, in the name of encouraging civility. I tend to think that the rules already address what needs to be prohibited through Model Rule 4.4(a)’s prohibition that in representing a client “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….”

Any jurisdiction that has that version of RPC 4.4(a) has what it needs to get at the kind of uncivil behavior that should be curtailed.

Abuse of “Iowa nice” leads to rare Dubuque rebuke.

Readers of this space know that a large part of my practice involves representing lawyers in disciplinary proceedings. Disciplinary proceedings are difficult for all that are involved, but rarely can anyone involved question that they don’t know the stakes. They are what they are and they have their own rules and procedures.

Today’s post involves a story of a lawyer getting actual discipline in Iowa, in the form of a public reprimand, not through Iowa’s disciplinary system, but imposed by a federal district judge in Iowa through a sanctions-style set of proceedings deemed “informal disciplinary proceedings.”

And, as a lawyer who does a great deal of disciplinary defense but who also does still have a “normal” litigation practice as well, I’m quite torn. Based on the story that the federal court opinion tells, the Los Angeles lawyer absolutely deserves to be on the receiving end of discipline. And the court is a bit kind when it refers to the situation as being a “he said/he said” sort of dispute when, in fact, it was a “he said/he said and this other he said and then this other he said and this she said and this other he said” dispute.

The toxic approach to litigation the Los Angeles lawyer seems to embrace is something that a handful of lawyers in my state do as well, and they almost always manage to skate through without ever being sanctioned for their conduct because, when you are dealing with them, it’s always in your client’s best interest to just try to limit the amount of time you have to deal with them rather than increase it by pursuing discipline against them for their conduct. I’m confident Tennessee is not exceptional and that there are a handful or two of these folks in just about every state. Yet, given that there exists a system for pursuing discipline rather than monetary sanctions in Iowa, no matter how bad the conduct was it feels like the federal judge should have just made a referral to the Iowa disciplinary authorities instead of imposing discipline directly.

I’m also a bit torn that the only ethics rule upon which the court premised its punishment was RPC 8.4(d) – the notion that the conduct of the lawyer was prejudicial to the administration of justice. And, throughout, the extent of the analysis is not far from saying that just about anything improper that multiples or complicates litigation proceedings to make them unnecessarily protracted or unpleasant is the same thing as being prejudicial to the administration of justice. That is something of a slippery slope under normal circumstances but also problematic when there exists a separate remedy in federal court, under 28 U.S.C. 1927, for handling litigation tactics that unreasonably and vexatiously multiply proceedings.

Yet, here, all of the misconduct found to have happened would also have run afoul of RPC 4.4(a) — ” In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….” — so part of me thinks, at least as to the particular situation, that this falls into a “much harm, no foul” category. But the idea that the “wrong” ethics rule was also used to get to what was likely the right outcome is just further fuel for the fire that the better path would have been to refer the matter to disciplinary authorities.

You can go read the full opinion and draw your own conclusions about whether it was the right manner for imposing discipline by clicking on the download button below.

And a word of thanks to Todd Presnell for spotting this case and sending it my way as fodder for discussion. If you aren’t reading Presnell on Privileges, well, under normal circumstances I’d chide you and say you should, but we’re all doing what we can to hold things together these days so … what I’ll say instead is, if you’ve got the mental bandwidth to add it to your reading list, it’s really good.

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.