51 RI Bar J., No. 2, Pg. 7 (September, 2002). Out of Sync and Sanctio.

• Author: Edward john Mulligan, ESQ.

Rhode Island Bar Journal

Volume 51.

51 RI Bar J., No. 2, Pg. 7 (September, 2002).

Out of Sync and Sanctio

Out of Sync and SanctioEdward john Mulligan, ESQ.Edward John Mulligan formerly practiced in Lincoln.He now practices with the Civil Division of the State of Hawaii, Office of the Attorney General"Beware the Jabberwock,...the jaws that bite, the claws that catch!" may have been a warning given by Lewis Carroll in Through the Looking Glass (fn1) to those who may become involved with a mean-spirited lawsuit. For recent cases that flash warning signs of claws that catch and jaws that bite, one may read the tripodal decisions of Revson v. Cinque & Cinque, P.C. (fn2)

The Revson trilogy represents a saga of incivility, hard ball and Rambo tactics that have become the bane of the profession. Fortunately, the conduct stated in the Revson cases has not yet found a wide berth in Rhode Island practice. Hopefully, a different result may be found by the Rhode Island collegial court, than was found by the collegial court for the Second Circuit Court of the United States on the issue of sanctions and the "missing witness" appellate rulings.

The PlaintiffThe plaintiff, Ms. Rommy Revson (Revson), made a fortune inventing the "scunci," sometimes called "scrunchy." A scunci, as commonly known, is a cloth-covered, elasticized hair band that is worn around a ponytail. Millions of dollars worth of these hair bands are sold each year. Consequently, Revson was no "Spring Chicken" concerning law suits and attorneys.

The Plaintiff's First & Second AttorneysEarly in 1993, Revson was involved with an arbitration proceeding, then pending in Philadelphia. She became unhappy with her first attorneys. In seeking to find legal happiness, Revson then hired the defendants, Cinque & Cinque (Cinque).

On March 25, 1993 Revson and Cinque executed a retainer agreement.

It provided that Cinque represent her as "litigation counsel" in the pending arbitration, and "generally" in her activities as a creative artist, inventor and patent holder. Cinque's agreement provided that Revson would be charged the "customary" hourly billing of $325 and that Cinque's brother would bill at $300 per hour. The agreement further provided:While we will keep daily records of the time spent [sic], in fairness to you in this matter involving many issues which arise from the current dispute...our billing will take into account not only the amount of time spent, but also the result achieved.

Of necessity, a fair amount of duplication of attorney effort and time must take place, and I do not believe it appropriate to charge you the full rate for this. At the same time, if we are able to achieve an outstanding result or substantial benefit for you, then your billing will be adjusted accordingly following consultation with you. (fn3)

During the almost five year relationship, the hourly billing rate maintained at the same constant "customary" hourly rate.

From Attorney to FriendFor approximately the next five years, things went swimmingly between the parties. Cinque represented Revson on a number of patent and licensing matters. Revson became Cinque's most important client. Over that Cinque-anno course of time, Revson paid Cinque almost $400,000 in fees. The rates were not raised, and Cinque often charged less than the usual rates. During this period of "happy" representation, bills, and other billing information, were sent to Revson and her accountant for review.

In May of 1997, a change in the billing procedure occurred. At that time, Revson informed Cinque that it was "not necessary" to send time sheets. Cinque responded by letter and related to Revson that the time sheets would be available to her at any time she requested the same.

With the passage of time, the relationship between Revson and Cinque changed from a strictly business relationship to one of a friendship. As Revson described the relationship, "Cinque was like a brother that I really didn't have. He was a friend. He and Jane [referring to Jane Klein, Cinque's companion] were both friends. We had a lot of fun together." The trial testimony revealed that Cinque and Klein visited Revson, her son and her son's girlfriend at a house that Revson had rented in Sun Valley.

In February 1997, Cinque and Klein visited Revson at her home in Florida for a working vacation. They were there for several days:

After Cinque and Klein left, Revson wrote a note, that read, in part, as follows:

Dear Bob & Jane,

Sadness, tears, love, emptiness, and yet, happiness, belonging and a strong sense of friendship and family fill my heart as your little white car is pulling away from my happy little orange cottage....Time flies when we are together. My happiest moments are probably dinner, cocktails, and morning greetings when you are both near.* * *

In my life, very few people have believed in me and supported me and took the time out to understand me. Both of you did! For this, I love both of you.... One night at dinner, I had mentioned that I would give you 10% (ten percent) of whatever you recover for me from L & N (the above arbitration matter). I want to unequivocally state that is exactly what "the deal" is. You stood by me and you deserve it. This would make me happy. (fn4)

In 1997, Revson was so happy with the firm's services that she presented Cinque with a Mercedes-Benz, which was adorned with a red ribbon as a gift. Cinque, however, decided that he had to decline the car and he did so.In the fall of 1997, Cinque negotiated a deal on behalf of Revson. The deal was closed on December 4, 1997. From that business transaction, Revson was dealt $2.4 million dollars. At the closing on that million dollar plus deal, Revson gave gifts to Cinque.

However, the following day, Cinque called Revson to discuss if she would attend the deposition of a witness in the L & N matter (the pending arbitration matter). Also, at that time, Cinque brought up Revson's offer of a 10% bonus and, additionally, suggested the firm deserved a little more. But, forsooth, "Revson became upset and said she wanted to think about it." (fn5)

From Friend to FoeThe "little more" matter was not discussed by Revson and Cinque again for almost a week. That "little" discussion of December 11, 1997 was triggered by Cinque learning that Revson had consulted with another attorney, Roland Witkowski, regarding the "modification agreement."

Cinque became "upset by this turn of events, he felt the proposed modifications were unfavorable to Revson, and because he believed Revson had gone behind his back." (fn6)

That conversation, however, turned from friendship to distaste, because Revson said to Cinque, "that's it, you are fired." And, "[w]ithin a minute, a fax... from Revson arrived at Cinque's office." (fn7)

The New New AttorneyInterestingly, that minute letter fax, which must have been either nano-typed or had been pre-prepared, stated: "I have decided to discharge you and your firm ...for all purposes...and replace you with Judd Burstein.... Upon presentation of the detailed statement that I have been requesting for months, I will of course promptly pay all...charges...due and owing...." (fn8)

The LetterJudd Burstein's entry into the "dispute" was prompt. That Sunday, December 14, 1997, Burstein posted a Lupinus and loose tongued letter. Burstein's deictic lettergram...