By Michael Hoenig - New York Law
Journal - July 14, 2014
Assume heated, contentious litigation ensues
between opposing counsel. During a squabble over discovery
Attorney A, in an e-mail, calls her adversary (Attorney B) a
rather common, vulgar profanity that describes a portion of the
anatomy. She also uses the crude words "sh--" and "fu--" in an
admonition to her adversary not to build a record for filing
some unmeritorious motion. To fortify this warning, Attorney A
tells B she has "everything taped" so that the recordings will
be used to blunt such a tactic.
the fact that attorney speech using profanities, vulgarities and
threats to use surreptitiously made recordings against one's
opponent may not be nice behavior, does such conduct justify
court intervention? If yes, what should it be? If yes, what is
the source of the court's power to sanction such behavior? Do
vulgar epithets hurled at opposing counsel violate New York's
Rules of Professional Conduct? Does the making of surreptitious
recordings of an opposing attorney or of counsel's conversations
with an adverse expert offend professional disciplinary rules?
If yes, can the court intervene and, if so, how?
questions boiled to the surface in proceedings before Southern
District of New York U.S. Magistrate Judge James C. Francis IV
in a case called Alexander
Interactive v. Adorama.1 Magistrate
Judge Francis issued his tight, neat, informative decision on
June 26 in the form of a Memorandum and Order. The bottom line
is that attorneys' use of intemperate language can run afoul of
professional conduct rules. The court can enforce state bar
disciplinary rules. Ditto for making surreptitious tape
recordings of conversations with adverse counsel or his expert.
Here is what happened.
Adorama, an electronics retailer, contracted with Alexander
Interactive (AI) to develop a new website. The project was
unsuccessful, and the parties' relationship broke down. AI sued,
claiming breach of contract, misappropriation of its proprietary
software and, later, defamation. Adorama counterclaimed,
asserting wrongful termination of the contract, failure to meet
deadlines, misrepresentation of AI's capabilities and delivery
of substandard work. Discovery became contentious. In January,
Judge Francis authorized Adorama to have its expert conduct a
forensic examination of aspects of AI's computer system.
Following a partial inspection by the expert, Adorama's attorney
("B") sent an email to AI's counsel ("A") saying that the
continued inspection set for the following day would not proceed
as planned. The reason was plaintiff's advice to the defense
expert that two of its hard drives had been damaged or "wiped"
and no longer contained relevant data. Further, the expert was
unable to access backup information because of poor Internet
connectivity on site at AI.
email message was not warmly received. Attorney A responded,
disputing her adversary's assertions. She concluded her response
as follows: "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." Attorney A closed with the
following: "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."2
missive by A resulted in Attorney B bringing the conflict to the
attention of Judge Francis. B asked that A be admonished for her
profanities. He also contended that the tape-recording of
Adorama's experts was improper and, thus, asked that A be
ordered "to produce the original recording and any other
surreptitious recordings she may have made."
responded. She apologized for using vulgarities. She attributed
her conduct to being tired and angry, but as the court noted,
"she also argued that B had engaged in inappropriate and
intimidating behavior during meet and confer sessions and
depositions by shouting at her and telling her to 'shut up'." A
attached deposition transcripts to her letter to the court and
offered to provide videotapes of the depositions for the court's
respect to the surreptitious tape recording, A said: "I can
represent to this Court, under penalty of perjury, that no such
taping took place." She explained that "[m]y purpose in stating
that the conversation was taped was to compel honest conduct by
[Attorney B], his clients and their experts." Further, argued A,
even if she had made such a recording, it would not have been a
violation of professional ethics. The foregoing facts led the
court into a discussion, separately, about intemperate language
and undisclosed tape recording.
Although federal courts do not generally enforce state bar
disciplinary rules, they have "inherent power" to address
attorney misconduct during litigation.3 In doing so,
they frequently look to professional conduct standards in the
state where the federal court sits.4 Rule 8.4(h) of
the N.Y. Rules of Professional Conduct [formerly Disciplinary
Rule 1-02(A)(7)] provides that "[a] lawyer or law firm shall not
engage in any conduct that adversely reflects on the lawyer's
fitness as a lawyer." Similarly, Rule 8.4(d) [formerly DR
1-102(A)(5)] proscribes conduct that is prejudicial to the
administration of justice."
Magistrate Judge Francis stated that it is "well established"
that the use of "vulgar, insulting, and offensive language"
toward an adversary in litigation "constitutes a violation of
these rules."5 Here, however, the gravity of Attorney
A's misconduct was "mitigated somewhat" by her recognition of
the impropriety and her apology. Further, A's suggestion that
she was overwrought when creating the offending email is
"corroborated" by the fact that it was sent at 12:22 a.m. In the
clear light of day, said the court, "she might have used better
judgment and pressed 'delete' instead of 'send.'"
contrition, however, was "undercut" by her attempt to deflect
the blame to her adversary. The court reviewed the videotaped
depositions as well as the transcript excerpts provided and
could find nothing that would support A's position. Both
counsel, to be sure, occasionally became heated but Attorney B's
most strident behavior was to tell A, "Enough." B generally
admonished A only when she appeared to coach a witness by making
speaking objections or when "she directed the witness not to
answer even though no privilege was being asserted." Therefore,
the court "cautioned" Attorney A that "incivility among counsel
will not be tolerated" and that "any similar misconduct in the
future will warrant the imposition of sanctions." This
potentially could include relieving A from representing any
party in this action.
court then turned to the issue of undisclosed tape recordings
and observed: if A had tape-recorded her conversation with
defendant's expert without disclosing that she was doing so, she
likely would have violated Rule 8.4(c) of N.Y.'s Rules of
Professional Conduct. This prohibits "conduct involving
dishonesty, fraud, deceit or misrepresentation." A urged that
Formal Opinion 2003-02 of the N.Y. City Bar Association's
Committee on Professional and Judicial Ethics had concluded that
not all undisclosed recording by an attorney should be
considered unethical. But, Judge Francis noted that the
committee "remained of the view…that undisclosed taping smacks
of trickery and is improper as a routine practice."
Although the committee said that undisclosed taping, if done
under circumstances that can be said to "further a generally
accepted societal good" will not be regarded as unethical, A's
alleged recording here hardly seemed to fit within this "safe
harbor." A argued that the proposed taping's purpose was to
"compel an honest recitation" of the plaintiff's conduct in this
case by B. That is a "generally accepted societal good."
court, however, rejected this interpretation. Were it otherwise,
"the exception would swallow the rule." Counsel could then
always represent that their intent in making a surreptitious
recording was to keep the adversary honest. Indeed, the city bar
committee's report provides "much narrower" examples where
undisclosed taping might be acceptable (e.g., investigation of
ongoing criminal activity; significant misconduct; or
conversations with persons who previously threatened an attorney
or a client).6
Magistrate Judge Francis saw no need to define the "precise
contours" of the proscription against surreptitious recording
because, in this case, Attorney A represented under penalty of
perjury that, in fact, she did not make such a recording.
Rather, she pretended to have made one "to compel honest
conduct" by B, his clients and experts. But the court viewed
this "in itself" as an "acknowledgment of having engaged in
deceit and misrepresentation." Therefore, A was "admonished to
abide by her duty to deal with opposing counsel with candor."
Additionally, within 10 days, she must "produce any undisclosed
recordings she has made or caused to be made in connection with
this case or shall provide an affidavit stating that none was
made." The court closed with the expectation that A will comply
with her obligations and that "there will be no further need to
address her conduct."7
computer age has ushered in an era of great promise, an age of
accessible information in which all kinds of learning and
wholesome communications can flourish. With dazzling speed,
emails can express, in nearly real time, what the author is
thinking. However, what one thinks at a given time is not
necessarily what one should say. That is particularly true for
lawyers who, after all, have to represent their clients, not
speed, ease and seeming informality of email exchanges can, on
occasion, trigger poorly worded messages that, in hindsight, the
lawyer will regret sending. It is helpful to remember that a
litigator's speech and writings are his or her armaments of war.
But those weapons cannot be of the outlawed, forbidden kind.
Professional protocols proscribe profanities and vulgar insults.
And, as Magistrate Judge Francis has observed, undisclosed,
surreptitious recordings of one's adversary lawyer or expert
are, in most cases, also off limits.
Michael Hoenig is
a member of Herzfeld & Rubin.
Civ. 6608 (S.D.N.Y. June 26, 2014) (Magistrate Judge James C.
Francis IV), New York Law Journal, July 3, 2014; http://www.newyorklawjournal.com/id=1202661703410.
Interactive, Id., at *3.
Id., at *4-*5 (citing In re Snyder, 472 U.S. 634, 645 n.
6 (1985); United States v. Seltzer, 277 F.3d 36, 40-42
(2d Cir. 2000); Handschu v. Police Dep't of the City of N.Y.,
679 F.Supp.2d 488, 501-03 (S.D.N.Y. 2010)).
Id., at *5 (citing Coggins v. County of Nassau, 615
F.Supp.2d 11, 30 n. 8 (E.D.N.Y. 2009); Richards v. City of
N.Y., No. 97 Civ. 7990, 2000 WL 139635, at *4 (S.D.N.Y. Feb.
Id., at 5 (citing In re Chiofalo, 78 A.D. 3d 9, 10-11,
909 N.Y.S.2d 36, 37 (1st Dept. 2010) (per curiam) (lawyer sent
"hostile, obscene and derogatory" communications to wife and her
attorneys during divorce proceedings); In re Schiff, 190
A.D.2d 293, 294, 599 N.Y.S.2d 242, 242-43 (1st Dept. 1993) (per
curiam) (counsel was intimidating and abusive and directed
vulgar, obscene and sexist epithets to adversary during
Id., at *8-*9.
7. Id., at *9.
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