Attorney conduct

• Author: Helen E. Freedman/Gerald Lebovits
• Pages: 451-482

18-1

CHAPTER 18

ATTORNEY CONDUCT

I. PRINCIPLES

§18:10 Rules and Sanctions

II. OBJECTIONS

§18:20 Arguing Objections in the Jury’s Presence

§18:30 Failure to Comply With Ruling or Order

§18:40 Improper Comment

§18:50 Presenting Material Not in Evidence

§18:60 Concealing or Destroying Evidence

§18:70 Conict of Interest

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18-3 ATTORNEY CONDUCT §18:20

I. PRINCIPLES

§18:10 Rules and Sanctions

Attorney misconduct in the context of litigation or trial covers a broad range of unprofessional conduct. Exam-

ples of misconduct include those violating specic Canons, which include Disciplinary Rules (DR) and Ethical

Considerations (EC) set forth in the Lawyers Code of Professional Responsibility, adopted by the New York State

Bar Association in 1970 and promulgated as joint rules of the Appellate Divisions in 1990 and amended in 1993.

e rules of all four Departments of the Appellate Division provide that attorneys must act in accordance

with the Code of Professional Responsibility. And the First and Second Departments have adopted Special

Rules Concerning Court Decorum designed to ensure that court proceedings are orderly and dignied. e rules

provide that dignity, order, and decorum are indispensable to the proper administration of justice. As a result, the

courtroom must at all times satisfy the appearance and reality of fairness and equal treatment. 22 NYCRR §604.1

(First Department); 22 NYCRR §700.2 (Second Department).

22 NYCRR §130-1 allows imposition of costs up to $10,000 per incident for frivolous or other misconduct

during civil litigation. An attorney may also be held in criminal or civil contempt for failing to follow an order or

direction of the court. Jud L §§750, 753. An attorney found in contempt may be ned or imprisoned. Jud L §§770,

773. An attorney who is guilty of any deceit or collusion is guilty of a misdemeanor and in addition to punishment

under the penal law, forfeits to the injured party treble damages in a civil action. Jud L §487. Amaltano v. Rosenberg,

12N.Y.3d 8, 874 N.Y.S.2d 868 (2009).

Only a few of the more egregious types of attorney misconduct are discussed here. For complete discussion

of areas of conduct involving attorney misconduct in the areas of opening and closing statements, see Ch. 3, Ch.

20, respectively. For objections pertaining to jury selection, see Ch. 2. For objections pertaining to examination of

witnesses, see Ch. 15.

II. OBJECTIONS

§18:20 Arguing Objections in the Jury’s Presence

Objection, Your Honor. Counsel is (arguing) (making a speech) in front of the jury.

COMMENTS

Generally, it is essential to state the grounds for an objection to preserve the objection for appellate review. See

Robillard v. Robbins, 78 N.Y.2d 1105, 578 N.Y.S.2d 126 (1991) (general objections are insucient to preserve a

legal issue for review by the Court of Appeals); Hamilton v. Raftopoulos, 176 A.D.2d 916, 575 N.Y.S.2d 531 (2d

Dept. 1991) (in a medical malpractice case, objection that was sustained following an o-the-record discussion,

was not preserved for appellate review). Moreover, failure to object or to move for a mistrial in a timely fashion

may constitute waiver of the objection. Reilly v. Wright, 55 A.D.2d 544, 390 N.Y.S.2d 1 (1st Dept. 1976) (motion

for mistrial was not made before jury announced its verdict); Smith v. Rudolph, 151 A.D.3d 58, 51 N.Y.S.3d 507

(1st Dept. 2017) (the court may set aside a verdict “in the interest of justice” pursuant to CPLR 4404(a), even if

counsel fails to timely move for a mistrial before a jury returns a verdict).

At the same time, it is never appropriate to get into an argument with the court in front of the jury over an

objection or a ruling. Nor, for that matter, is it appropriate to argue with opposing counsel over an objection or a

ruling. Indeed, an attorney may not argue in support of or against an objection without permission from the court,

nor may any attorney argue with respect to a ruling of the court on an objection without such permission. 22 NYCRR

§604.1(d)(4) (First Department); 22 NYCRR §700.4(d) (Second Department); for objections generally, see Ch. 1.

erefore, if it is necessary to call the court’s attention to an issue or preserve an issue for appeal, an attorney

should make a concise statement of the particular grounds for an objection or exception. If an attorney believes in

good faith that the court has wrongly made an adverse ruling, he or she may respectfully request reconsideration

of the ruling. 22 NYCRR §§604.1(d)(4)(ii), 700.4(d).

Stating the grounds for an objection, or asking the court to reconsider a ruling where an objection is overruled

is proper. See 22 NYCRR §§601.1(d)(4), 700.4(d). However, telling the judge that he or she is wrong, indicating

that the judge is unfair in allowing or refusing to allow a witness to answer, or ignoring a court’s ruling constitutes

improper argument. Mercurio v. Dunlop, Ltd., 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dept. 1980).