July 12, 2014

Comedic Break: Poor Legal Behavior

A quick question for lawyers and non-lawyers alike: is it a good idea to call your adversary an "asshole" or to warn them not to "try any shit with the Court" and remind them, "don't fuck with me?" Sure, I get that it would be rude and all that, but are there ethical implications? Does it help or hinder your litigation strategy? Will it improve the Court's perception of you and your positions? All of which comes back to the first question, which is whether it's a good idea.

While you're pondering that, let me ask this: would it be wise to memorialize the statements, just so there's no dispute over your precise language? And for good measure, how about the clandestine taping of an adverse expert's visit to your client's office; a good idea?

A federal judge in the Southern District of New York was recently asked to opine on just this situation. Not suprisingly, he was not a fan. (An article on the recent ruling can be found in a New York Law Journal article here; the case is Alexander Interactive v. Adorama, 12 CV 6608, for those with too much time on their hands). My guess is that he was more surprised that comments were written down than he was that they made in the first place.

I have been on this Earth for some 49 years, and have been litigating for more than 18 years. During this time, I have encountered all sorts of people and lawyers in a wide variety of cases and situations. More than a few of these folks (myself included) have potty mouths. There are also plenty of lawyers who are deliberately difficult, who lie, obfuscate, play dirty pool, and are generally scummy people. That's not to say they curse. After all, you can be a virtual saint and swear like a sailor, or be a really shitty human being that abhors profanity. 

So I don't really have a problem with another lawyer or adversary swearing. I also don't mind aggressive adversaries. After all, they are my opponents, it's their job to resist, to fight, to be their clients' warriors (sans the nobility), and that's often reflected by antagonistic remarks. But, I would be surprised to be cursed out by a lawyer. 

I would be far more shocked if any lawyer was so dumb as to commit it to writing. That's the real head scratcher here. My approach to letters and emails is to always assume that a judge might reading it one day, and to write it accordingly. Sarcastic and obnoxious responses to dopey lawyers' letters are fun and sometimes not inappropriate (see the ATL post here for example). But a "fuck you" letter really shouldn't be so literal.

Back to the case at hand. The critical issue concerned a visit by one party's tech expert to the other party's office to review some computers. Counsel for the party that hired the expert emailed his adversary to say that the expert was told during the inspection by the other party that they had wiped some/all of the hard drives prior to the inspection. Counsel for the party whose computers were being inspected strongly denied this, and emailed back to express her displeasure. According to the NYLJ, the email said, in part:
You're an asshole….I have everything taped. And yes, under N.Y. law and the rules of professional conduct, it's allowed. If you think you're going to sully my clients with your fictions, you're a fool. If you try any shit with the court, I welcome it. We have provided all requested data, all requested backups and have provided it in an orderly and accessible manner, unlike your clients. . . .Don't fuck me. I'm done with your unethical behavior. Any motions by you, if you're trying to build a case for some unmeritorious motion to deflect from your clients' unethical behavior, will include my recordings from today. Please govern yourself accordingly.
Ultimately, Magistrate Judge James C. Francis, IV -- a very experienced and respected jurist -- decided that (a) federal judges had the inherent authority to discipline lawyers under the applicable state law provisions, (b) the responding attorney's conduct was sanctionable, but (c) no sanctions would issue, providing the conduct did not reoccur. 

My reading of the Judge Francis's sub-text (meaning, what I blindly assume he was thinking in order to allow me to tell you my opinion) is that he understood that lawyers become frustrated with each other, and may want to say, or actually say, rude and impolite things. But for Pete's sake, DON'T WRITE THEM DOWN.

He also pointed out that surreptitious recordings of other party's experts are probably unethical. That is to say they are mostly unethical, and that while there are exceptions, we ought to presume they are unethical. 

But again, if we learn anything from this decision (which hopefully is nothing you did not already know), if you want to speak rudely and profanely to your adversary, say it on the phone or face to face. Maintain some plausible deniability. Certainly, don't write it down. A little common sense people. 

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