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.