The Delaware State Bar Association

Ethically Speaking

Lawyers Behaving Badly – Again

by Charles Slanina, Esquire

As an annual event, I offer a potpourri of attorney misconduct and bad behavior. This year’s “When Will They Ever Learn?” awards go to:

In Smith v. Sophia a Bronx trial judge set aside a $16 million jury verdict for what he called “reprehensible” conduct by one of New York’s top medical malpractice attorneys. Supreme Court Justice Stanley A. Green declared that Thomas A. Moore “created a hostile environment that obscured the issues, rendered the trial unfair and was degrading to the institution of the Court.” In the opinion, the judge cited numerous instances of combativeness. One of the exchanges noted occurred when Moore asked a doctor if he thought it was appropriate for the medical team to “be on the same page” when treating a patient. The defense attorney objected and Judge Green sustained the objection stating “I don’t know what that means.” Mr. Moore, in representing a former law firm clerk who claimed that doctors failed to diagnose medical problems that led to a stroke, replied, “You don’t ? I think everybody else in the room does, Judge. But I will be delighted to rephrase it.” Justice Green immediately excused the jury and reprimanded Moore for his “attitude” and “demeanor.” Moore responded by asking “What are you talking about?” The judge responded by stating “Just be quiet when I am talking. You are going to stop this manner now...You don’t argue with me. You don’t glare at me or do any of those things. And if you continue with it, I will take more appropriate action.”

Moore did not relent, responding: “So then, Judge, sustain the objection. Do not say that you do not know the meaning of ‘on the same page.’”

“Do not tell me what to do,” the judge replied. “You raise your objection. You make a motion. That’s the end of it. I don’t want to hear this anymore. You belittle me and you belittle the institution, and I will not tolerate it. Not from you, not from anybody.”

Moore persisted. “Do you say on this record that you don’t know the meaning of the phrase ‘on the same page’?”

“Don’t ask me a question. You have no right to ask me a question,” the judge responded.

In the opinion, Justice Greene cited Moore for denigrating opposing counsel and several witnesses with “mocking comments,” such as “With all due respect, I asked a question that a fourth grader could answer if he’s telling the truth.” and “The game is up, Doctor, I hate to tell you.”

The judge also noted Moore’s closing remarks as being prejudicial towards the defense attorney. Those remarks are reported to have included comments that there was an “orchestrated, deliberate, concerted effort” by the defendants “to deprive Plaintiff of justice,” and that the defense attorney “did his best, but he had to defend the indefensible.”

In another case, it was not the attorney’s tongue but his pen that created problems. A West Hartford, Connecticut lawyer wrote a poison-pen letter to a probate judge. That letter claimed that the judge “prostituted the integrity of his office.” He also accused the judge of running “a financial spoils system for the cronies he calls his ‘professional conservators.’”

The attorney, Joseph Notopoulos, was brought up on disciplinary charges by the state grievance committee. The resulting public reprimand was upheld despite Notopoulos’ claim that his criticisms were made in his capacity as a private citizen, not as a member of the Bar, and that they were protected free speech. The Court disagreed, allowing his sanction for engaging in conduct prejudicial to the administration of justice and statements intended to disrupt a tribunal to stand.

Mr. Notopuolos is reported to be considering a further appeal, but acknowledges that the reprimand has little consequence to him because he is a non-practicing lawyer. He currently serves as a Hartford Judicial District magistrate according to an article by Scott Brede in the Connecticut Law Tribune dated October 13, 2003.

As always, lawyers are not immune from bad conduct just because they are appointed or elected to the bench. After Mississippi High Court Justice Oliver Diaz, Jr. was indicted for bribery and fraud, five of his former colleagues filed a judicial ethics compliant against Presiding Justice Chuck McRae. The complaint alleged that Justice McRae deliberately disrupted and delayed cases, especially those assigned to Justice James Smith with whom he had a ongoing dispute. McRae was also charged with leaking documents, failing to recuse himself from cases with family members and threatening to “whip” Chief Justice Edmond Pittman. Soon after, McRae lost a three-way race last fall, he reportedly told Pittman, “I have 369 days left in my term and I intend to have fun on every one of them. I am going to call you a ‘Lil’ Tadpole’ every day that I can.”

Questionable behavior may be a growth industry within the legal profession. Or it may be a case of “it’s never too early to start.” Matthew S. Toll, a third-year law school student at Tulane University Law School, has gained some notoriety but no position as yet with his online job applications. He has raised eyebrows with claims that he’d rather take a deposition than attend his mother’s funeral and rather postpone his wedding than miss a trial. So far, the only response he’s had is from New Jersey judges about a possible clerkship perhaps in response to his promise, “If a piece of evidence was accidentally dropped into the garbage, I would have no problem going to the local dump and spending days covered knee deep in the worst, foul-smelling sludge imaginable to search for the evidence.”

Thankfully, Delaware attorneys avoided my list again this year.