I. Introduction

LibraryProfessional Responsibility in Litigation (ABA) (2016 Ed.)

I. Introduction

Litigation can generate very strong emotions on lawyers' part. Lawyers often feel great loyalty to their clients, and in some cases the stakes for clients are enormously high. The stakes in a particular case may also be high from the lawyer's perspective, as where a win or loss may potentially determine whether the client continues its relationship with the lawyer or instead transfers its business to another law firm. Lawyers may be frustrated or angered by witnesses' testimony or judges' rulings. Finally, some lawyers simply dislike or distrust their counterparts, or feel the same way toward judges, opposing parties, or adverse witnesses.

For these reasons, lawyers occasionally behave regrettably in the course of representing clients. Anger and other emotions periodically overcome good judgment and objectivity. When that happens, the civility that should characterize lawyers' relationships with other participants in the litigation process sometimes vanishes.1

In an Ohio case, for example, two lawyers were reprimanded for exchanging profanity in chambers and thereafter shouting at one another while standing chest-to-chest in the courtroom.2 A Texas lawyer representing a client in a hearing feigned masturbation while rolling his eyes to express his displeasure with a prosecutor's objection, a stunt for which he was found guilty of criminal contempt.3 In Kentucky Bar Ass'n v. Waller,4 a lawyer referred in a pleading to a judge who recused himself as a "lying incompetent ass-hole," and further wrote that the replacement judge would almost certainly prove himself to be superior to his predecessor "if [he] graduated from the eighth grade."5 The Kentucky Supreme Court suspended the lawyer from practice for six months as a result. New York lawyer Kenneth Heller was disbarred following years of screaming at judges, threatening judges who ruled against him with ethics complaints, bullying and abusing expert and fact witnesses, and physically threatening deposition referees with whom he disagreed.6 Heller unsuccessfully attempted to defend his serial misbehavior on the basis that he was merely an "overzeal-ous advocate."7 An Ohio lawyer who was representing himself in a deposition repeatedly threatened to tear off the questioning lawyer's moustache, give him the beating of his life, slap him, and break his head.8 He also called his inquirer a "child and a punk" and a "fat slob," as well as various obscene names.9 Chicago lawyer Thomas Guadagno was convicted of disorderly conduct for yelling "homosexual" and "scumbag" while pointing at another lawyer in open court.10 Apparently a slow learner, Guadagno later faced ethics charges for allegedly describing...

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