II. Civility

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

II. Civility

"Civility is basic and fundamental."¹⁸ It is unquestionably a matter of interest to courts and to the legal profession.¹⁹ The other side of the same coin is "incivility." Personal attacks on others, boorish behavior, rudeness, insulting remarks, and obstructionist conduct all fall under the general rubric of incivility. Even "sharp" litigation practices, such as rushing to take a default judgment or seeking an unfair advantage through an ex parte proceeding when the identity of opposing counsel is known, have drawn judicial ire as being uncivil.²⁰

A. Cases and Controversies

Regarded as somewhat astonishing when the opinion was published two decades ago, Paramount Communications, Inc. v. QVC Network Inc.²¹ arguably remains the leading case on civility. In Paramount, the Delaware Supreme Court affixed an addendum to its opinion that, while having no bearing on the outcome of the case, was necessary to address "a serious issue of professionalism involving deposition practice in proceedings in Delaware trial courts."²² The object of the court's attention was legendary Texas trial lawyer Joe Jamail, who represented Paramount director J. Hugh Liedtke in his deposition. Jamail did not otherwise appear in the case for any party, nor was he admitted pro hac vice.

During the deposition, Jamail improperly instructed Liedtke not to answer questions, "was extraordinarily rude, uncivil and vulgar," and obstructed the inquiring lawyer's ability to elicit Liedtke's testimony.²³ Among other things, Jamail called the lawyer deposing Liedtke an "asshole," told the lawyer that he "could gag a maggot off a meat wagon," and accused him of asking "stupid questions" in order to earn a "full day's fee."²⁴

Although neither the parties nor the witness appeared to have been prejudiced by Jamail's misconduct, the Paramount court found his "unprofessional behavior to be outrageous and unacceptable."²⁵ The court went on:

This kind of conduct is not to be tolerated in any Delaware court proceeding, including depositions taken in other states in which witnesses appear represented by their own counsel other than counsel for a party in the proceeding. Yet, there is no clear mechanism for this court to deal with this matter in terms of sanctions or disciplinary remedies at this time in the context of this case. Nevertheless, consideration will be given to the following issues for the future: (a) whether or not it is appropriate and fair to take into account the behavior of Mr. Jamail in this case in the event application is made by him in the future to appear pro hac vice in any Delaware proceeding; and (b) what rules or standards should be adopted to deal effectively with misconduct by out-of-state lawyers in depositions in proceedings pending in Delaware courts.²⁶

As to the first issue, the court invited Jamail to appear before it to explain his conduct and to show cause as to why his conduct should not bar him from appearing in any future proceeding in a Delaware court. As to the second, the court promised to work with the state's trial courts to strengthen existing mechanisms for dealing with such misconduct and practices related to out-of-state lawyers' admissions pro hac vice. Not surprisingly, Jamail declined the court's invitation to appear and was obnoxiously unrepentant. He retorted that the Delaware justices were "'confused by real-life advocacy. . . . They want to make lawyers dance to their tune of mediocrity. . . . I can only assume that they are frustrated in their jobs.'"²⁷

In re Greenburg²⁸ involved two Louisiana lawyers. One of them, Douglas Greenburg, called the other, Anthony Lewis, a "jackass" in open court.²⁹ Lewis swiftly— if not creatively—responded by telling Greenburg that his "mother [was] a jackass."³⁰ Following that juvenile exchange, Greenburg grabbed Lewis's suit jacket and the two men wrestled to the floor. The judge recessed the proceeding, cleared the courtroom, and managed to restore order. Greenburg was convicted of simple battery, a misdemeanor, for his role in the fracas. Lewis was not criminally charged. Ultimately, the Louisiana Supreme Court publicly reprimanded Lewis for his use of vulgarity. Greenburg, whose conduct was much more egregious, received a six-month suspension from practice. The supreme court agreed to stay all but 30 days of his suspension, however, if he successfully completed an anger management course.³¹

In In re Golden,³² South Carolina lawyer Harvey Golden was charged with misconduct in depositions in two domestic cases. In the first case, Golden deposed Thomas Smith, who was unrepresented and who had a history of emotional and physical problems. Golden knew of Smith's emotional illness, and belittled and insulted Smith throughout the deposition.³³ In the second case, Golden deposed the adverse party, Mrs. Jones. He allegedly called her a "'mean-spirited, vicious witch,'" told her that he would "'like to be locked in a room with [her] naked with a very sharp knife,'" and remarked that he needed "'a bag to put her in with the mouth cut out.'"³⁴ In both depositions Golden repeatedly raised his voice and acted in a threatening and demeaning manner.³⁵

Golden defended his conduct in Smith's deposition by saying that he needed to destroy Smith's credibility. He denied any intent to embarrass or harass Smith. Golden admitted that he made mistakes in the deposition, but blamed Smith for somehow provoking him. As for Mrs. Jones's deposition, Golden denied making some of the comments attributed to him. He admitted making the "bag" comment, but said that Mrs. Jones took it out of context.³⁶ He claimed to have only "jokingly" said that the way the case should be resolved was "to lock Mr. and Mrs. Jones naked in a room with a knife on the table and let the better participant emerge triumphant."³⁷

The South Carolina Supreme Court found Golden's "bullying of a mentally unstable witness in the Smith deposition an utterly inappropriate trial tactic."³⁸ Golden's comments in the Jones deposition were not an attempt at humor, but were intended to humiliate and degrade the witness. The court publicly reprimanded Golden for his conduct, a sanction perhaps mitigated by his superior reputation and long-standing prominence as a lawyer.³⁹

The lawyer whose conduct was scrutinized in In re First City Bancorporation of Texas, Inc.,⁴⁰ Harvey Greenfield, characterized various opposing lawyers as a "puppet," as a "weak pussyfooting 'deadhead'" who had "been 'dead' mentally for ten years," as "inept" and "clunks," as "a bunch of starving slobs," and as an "underling who graduated from a 29th-tier law school."⁴¹ He described their work as "garbage" that demonstrated their "legal incompetence."⁴² He further called the defendant's chairman a "hayseed" and "washed-up has been."⁴³ Greenfield defended himself against sanctions by arguing that his characterizations were accurate. He invoked truth as a defense, in other words. He additionally argued that the bankruptcy court and opposing counsel caused his behavior. The Fifth Circuit described Greenfield's first defense as "utterly meritless," and rejected his second defense just as easily.⁴⁴ The First City court thus affirmed a lower court's imposition of a $25,000 sanction against Greenfield.

Klemka v. Bic Corp.⁴⁵ is a strange case of deposition misconduct. In Klemka, Tina Klemka sued Bic for the death of her two children in a house fire allegedly caused by a child playing with a Bic lighter. During Klemka's deposition, Bic's lawyer, Richard Kraemer, pulled a Bic lighter from his briefcase and began handling it, once lighting it. Klemka's lawyer was disturbed by Kraemer's cruel antics and a shouting match ensued. Kraemer was abrasive and belligerent when asked to put away the lighter, refusing to do so in an apparent attempt to make the point that he would do as he pleased without regard for the feelings of others.⁴⁶

The plaintiff moved for sanctions. Kraemer responded that he was merely examining a piece of evidence, his conduct did not distract the witness, and his actions were innocent. The Klemka court was not impressed by Kraemer's arguments, finding it implausible that Kraemer's behavior at a key deposition was inadvertent. Kraemer's conduct "was clearly intended as a test of the plaintiff, not a test of the lighter."⁴⁷ The court was also disturbed by Kraemer's response when asked to put the lighter away, stating:

[H]is belligerent refusal to put the lighter away, attests to the purposeful nature of his conduct. One who unthinkingly toys with such evidence would realize the impropriety of such conduct upon being challenged by another; but this is not how the situation developed. Rather, Mr. Kraemer acted as though he had been lying in wait for an objection, using the opportunity to "obnox" the other side and put on a show of belligerence in front of the plaintiff.⁴⁸

The court found that Kraemer acted oppressively and vexatiously, and thus invoked its inherent power to sanction him. The court fined him $500.

Revson v. Cinque & Cinque⁴⁹ was a fee dispute. Judd Burstein represented Rommy Revson against her former law firm, Cinque & Cinque. Before suing, Burstein wrote a demand letter to Robert Cinque "in one last effort to avoid litigation that [would] inevitably tarnish [Cinque's] reputation."⁵⁰ Burstein threatened "to conduct the legal equivalent of a proctology exam on [Cinque's] finances and billing practices."⁵¹ Burstein continued his aggressive tactics when the case finally went to trial. In his opening statement, he called Cinque a professional disgrace, accused him of extortion, said that he would prove "'that there is a reason why lawyers are sometimes referred to as snakes,'" and cracked a joke about the public perception of lawyers as dishonest.⁵² The district court was offended by Burstein's pre-trial and trial tactics, stating:

A lawyer's duty to represent his client zealously does not permit him to treat his adversary or parties in an

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