Many people feel that attorneys behaving badly is “par for the course” but we are fortunate to live in Upstate New York where the vast majority of the attorneys in the legal community are hard-working, reasonable and ethical. That’s not to say there aren’t some bad apples that make a bad name for everyone, but thankfully those attorneys are the exception rather than the rule. Downstate New York is a different story and most of the reported decisions regarding attorney misconduct come from Downstate (for us Upstate New York folks, “downstate” is anywhere South of the Roscoe Diner! 🙂 A recent downstate case (New York County Supreme Court illustrates my point…..
New York City Attorney Eric Turkewitz, who writes a wonderful blog, posted this article on his blog:
“I am not aware of any rule or law which requires civility between counsel” (Thomas B. Decea, Esq.).
So begins the decision of Justice Carol Robinson Edmead in New York Supreme Court, bench-slapping but good local lawyer Thomas Decea who, during the course of a deposition, referred to opposing counsel Michelle Rice as “dear,” “girl,” and “hon,” among other transgressions. And when asked what he meant by “hon,” he oh so wittily replied, “As in Atilla.” Ho, ho, ho. He also thought it would be cute to ask her if she was married. What a card. And when the motion came in to have a referee appointed for future depositions, he actually claimed to be ignorant of the rules requiring civility.
Decea’s response was that Rice was asking leading questions.He then used that as an excuse both for his verbal assault on Rice as well as for directing his witness not to answer her questions. Compounding Deceas’s incivility was the fact that he kept interjecting himself to help coach the witness with answers. An attorney defending a deposition in New York, however, has no authority to stop a question because it is leading and may not use speaking objections to coach his witness how to answer, except with some limited exceptions where the question is palpably improper (When did you stop beating your wife?). So in addition to be abusive, he was also dead wrong on the law.
Anyway, attorney Decea is ignorant no longer. The good judge has set him straight, in an opinion that is now available online, telling him that, “Offensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable.” Justice Edmead went on to tell him that and an attorney’s “conduct … that projects offensive and invidious discriminatory distinctions … based on race … [or] gender … is especially offensive.” Much of the colloquy is quoted in that link.
She appointed a referee for future depositions, but did not sanction him (the motion was only for the referee, though she could have sanctioned him on the court’s own motion). Personally, I think the judge was being too kind to him, though the sanction of the opinion being available online for future clients to read may well be more profound.
Ironically, the case deals with attorney malpractice.
I wholeheartedly agree with Attorney Turkewitz that this fellow was VERY lucky to get off as lightly as he did. Frankly, Attorney Rice would have been totally justified in seeking financial sanctions for this improper and unethical conduct……
Thanks for reading, Jim Reed