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Ethically Speaking Bar Behaving Badly: by Charles Slanina, Esquire Allegations that attorneys and judges have behaved
badly, may serve as cautionary tales to illustrate ethics issues.
In other words, don’t let this happen to you. The Delaware State Bar Association issued its
Statement of Principles of Lawyer Conduct in
November 1991. Paragraph four of that Statement deals with civility
which it defines as "conduct that shows respect not only
for the courts and colleagues, but also for all people encountered
in practice." Pro hac vice admission motions by Delaware
counsel require a statement that a copy of this Statement has
been provided to out-of-state counsel so that they know what is
expected of them in Delaware practice, S. Ct. R. 71(b)(ii). Clearly,
the Court has embraced the standards and hopes, if not expects,
that practitioners will comport themselves accordingly. Other jurisdictions appear to have similar civility
concerns which may give rise to similar efforts to combat the
perceived increase in incivility. The Illinois Supreme Court recently
announced the creation of a panel to study attorney behavior and
to recommend ways to encourage respect for each other, clients
and the Court. According to a Chicago Sun-Times article of November
21, 2001 by Chris Fusco, the panel was created in response to
a perception that bad behavior by lawyers, including name-calling,
shouting matches and even threats of "you want to take this
outside?" was becoming so prevalent in Illinois courtrooms
that the state’s highest court had to step in. The following are examples of lawyers and judges
who have been accused of conduct which, if true, would serve as
examples of bad behavior constituting at least incivility and
possibly misconduct: • Disgruntled Fen-Phen plaintiffs have sued
a New York law firm alleging that they were improperly persuaded
to opt out of a global class-action settlement. In a suit filed
in the Southern District of New York, it was alleged that the
firm of Napoli, Kiser, Bern & Associates convinced the diet
drug users to reject a settlement with the defendant, American
Home. The attorney for the plaintiffs claimed that the firm’s
campaign led people to believe that the national class-action
settlement was under-funded and that they would recover larger
sums of money if they allowed NKB to represent them. That firm
has denied all of the charges. One specific of the Complaint alleges that plaintiffs
who attempted to obtain doctors’ records and other documents
from the firm to assess the settlement recommendation, received
a form letter in response which claimed that the NKB was unable
to produce documents because of the World Trade Center disaster.
The letter is reported to have stated that the firm was not allowed
to return to its offices and that the requested documents may
have been destroyed in the disaster. However, the suit alleges
that NKB’s offices were not damaged in the attack and always
had access to the building. (New York Law Journal, December
13, 2001) • A former compensation claims judge in Daytona
Beach filed suit against a Florida law firm for a worker’s
compensation seminar that they offered in which various compensation
claims judges and lawyers were described as racists, alcoholics
and incompetents. Former claims Judge Rand Hoch filed a defamation
claim based on comments allegedly made by lawyers of the firm
at the seminar which included the advice to "Always send
a young man in front of Judge Hoch as he prefers boys in shorts."
The suit objected to the implication that Judge Hoch was a pedophile. The firm had offered the gossipy seminars in worker’s compensation for a number of years in which they provided "inside information" about judges and plaintiffs’ attorneys in the field. The insights about the personalities involved were touted as providing an edge in resolving claims to the insurance claims adjusters who were the primary attendees. Other judges and attorneys were noted as having the following traits: "doesn’t like Haitians," "bright but very lazy," "Old Sleepy," "drinking problem...always talk to [him] before noon," "doesn’t believe in psychiatrists or psychologists," "under investigation for illegal activities." There was an undisclosed settlement after the Fifth
Circuit found that there were genuine issues of fact as to whether
the firm lawyers had defamed Hoch and that the comment constituted
libel per se. (Miami Daily Business Review, November 30,
2001) • A Livingston, N.J. firm cast a net for medical
malpractice clients by placing a newspaper ad by inviting calls
from anyone who had been treated by a New Jersey laser eye surgeon.
The firm was reported to be already representing two ex-patients
suing Dr. Dello Russo for malpractice and sought to obtain enough
additional clients to form a class. "Have you had a bad result
from laser eye surgery? Please call us for a free consultation
to discuss your legal rights," Nagle Rice Dreifuss &
Mazie said in an ad in New Jersey newspapers. They claimed to
have received more than two dozen calls. • Another Florida firm was denied permission
to enter a case as lead counsel of a class based on alleged prior
findings of professional misconduct. U.S. District Judge Constance
Baker Motley of the Southern District of New York refused to permit
the firm of Davis & Spriggs of Tallahassee to enter the case
at the request of plaintiffs who alleged that the lead plaintiffs’
counsel for the class had breached a settlement agreement. "We
can’t permit lawyers with histories like yours to appear
in the Southern District," Judge Motley said. "You may
be allowed to appear somewhere else, but you’re not allowed
to appear here." The Judge went on to assess each of the
two attorneys a $5,000 fine because they had filed the motion
to enforce the agreement while their pro hac vice motions were
pending but not approved. The Second U.S. Circuit Court of Appeal
overruled both the assessment and the revocation of the pro hac
vice admission status for the two attorneys finding that Judge
Motley failed to provide adequate notice or due process. The Court
went on to find that the sanctions were an abuse of discretion.
(New York Law Journal, November 26, 2001). • A Louisiana Supreme Court Judge who shoved
another Justice into a table during a dispute over whether one
should hire a Congressman’s sister-in-law was suspended by
the Louisiana Supreme Court. Judge Charles R. Jones was suspended
without pay from the Fourth Circuit Court of Appeal for thirty
days after a state Judiciary Commission investigation and recommendation
of a ninety-day suspension. The recipient of the shove, Judge
Steve Plotkin, is reported to have wound up on the floor bleeding
after the argument. (Based on an Associated Press article by Janet
McConnaughey which appears at
www.FindLaw.com). • A Mississippi Judge was accused of beating
a court reporter so severely that she may not walk again after
being found in a home owned by the Judge. In a sworn statement,
the court reporter alleged that she had been tied up by the Judge
with whom she had an ongoing romantic relationship. Judge Gerald
Hosemann denied the charges and his attorney offered the results
of a lie detector test which purports to clear him of the attack
on Juanita Johnston. As of January 2002, the Judge was reported
to have returned to the bench and is still hearing cases. (The
Clarion Ledger, January 2002, available at www.clarionledger.com). Next month I will try to offer another substantive
column with guidance on how to avoid becoming a poster child for
bad behavior. "Ethically Speaking" is intended to stimulate awareness of ethical issues. It is not intended as legal advice nor does it necessarily represent the opinion of the Delaware State Bar Association. Return to February 2002 Table of Contents.
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