Incivility is Not Dead: Lessons on What Not to Do

By: Katryna L. Kristoferson and David Paul Horowitz | August 15, 2023

Introduction

We’ve all heard our fair share of jokes at the expense of lawyers (see, e.g., Q: What do lawyers do after they die? A: Lie still.), and likely chuckle along. Another favorite joke is the lead-in for this month’s topic: Q: Why don’t sharks attack lawyers? A: Professional courtesy. Like many jokes, there is some truth to the jesting: “Sharks are opportunistic feeders,” and so are some lawyers. And the opportunistic feeding by lawyers includes abusive conduct at depositions. While most of us recall a time where lawyers were less than civil to their adversaries, a recent case suggests we may not have evolved as much as we thought.

Court’s Power to Sanction Counsel for Deposition (Mis)Conduct

22 NYCRR 130.1-1 (a) provides that:

The court, in its discretion, may award costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney fees, resulting from frivolous conduct as defined in this part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney who engages in frivolous conduct as defined in this part.

So, what type of deposition (mis)conduct can result in sanctions or rise to the level of misconduct?

Barking (like a dog) at a witness during a deposition, in and of itself, should qualify, no? Maybe not, oddly enough, that conduct alone could be insufficient:

While certain evidence of [plaintiff counsel’s] conduct that was adduced at the hearing before the special referee was not actionable under the orders of reference, it was clearly relevant to the extent that it puts in context [plaintiff] and [plaintiff counsel’s] conduct throughout this litigation. For instance, the evidence establishes that [plaintiff counsel] barked (like a dog) at witnesses during depositions. The evidence also establishes that [plaintiff counsel] contacted [the defendant] directly, even though he knew that [the defendant] was represented by counsel. Special Referee Hearing, Tr., at 173-74. While the court does not rely on these instances of misconduct in its confirmation of the referee report, this evidence raises serious concerns about [plaintiff counsel’s] fitness to practice law.
Levine v. Angsten, 2004 NYLJ LEXIS 2263 (N.Y. Sup. Ct. 2004)(internal citation omitted)(emphasis added).

Harassing a party at a deposition, coupled with demonstrated dilatory conduct, should qualify, no? In this (same) case, yes:

Here, [plaintiff] and [plaintiff counsel’s] frivolous and perjurious conduct clearly demonstrate that [plaintiff] and [plaintiff counsel] acted in bad faith, vexatiously and wantonly throughout this litigation. Thus, the defendants are entitled to recover expenses for defending against the two withdrawn motions, and all expenses associated with the hearing before the special referee, including reimbursement for actual expenses reasonably incurred, and reasonable attorney fees. In addition, due to [plaintiff] and [plaintiff counsel’s] bad faith, demonstrated throughout this action, in the interests of judicial economy, and to decrease the need for time-consuming and expensive satellite litigation, defendants’ request that the court hold a hearing on the issue of costs and attorney fees, without having to initiate a separate, plenary action, is granted.
Levine v. Angsten, supra (internal citation omitted)(emphasis added).

Both plaintiff, individually, and plaintiff’s counsel were each sanctioned $8,500 for their conduct during the litigation.

Fast forward almost 20 years; certainly, things are different (think #MeToo, #BlackLivesMatter), no? Nope. Unfortunately, similar behavior persists.

Is the Best Defense to be Offensive?

In a recent decision from the Commercial Division in New York County, the court determined a motion by plaintiff’s counsel which sought sanctions against the attorney for defendants for, inter alia, alleged misconduct and time-wasting during a nonparty deposition.

The court noted that counsel for the defendants’ statements at the deposition were clear violations of the Rules of Professional Conduct 8.4(g), and highlighted a number of inappropriate statements by counsel:

NYSCEF 75, Bronstein Depo tr at 23:5-9 [“Why don’t you ask these questions properly? … That’s your job as a professional], 23:23-25 [“Call the judge if you are upset”], 154:13-156:19 [accusing Stallone of tricking the witness and yelling], 229:25-230:5 [explaining to the witness how a deposition works remarking “this is really how we do it,” apparently in contrast to how Stallone took the direct examination of the witness], 297:14-298:22 [challenging Stallone’s understanding of how to take a deposition and accusing her of “putting on an act”], 448:24-449:4 [accusing Stallone of playing games], 452:25-453:9 [calling Stallone obnoxious], 458:5-14 [accusing Stallone of yelling at witness], 468:21-469:13 [accusing Stallone of interrupting him and calling Stallone obnoxious, again, directing Stallone to calm down and admonishing Stallone that she “needs a lecture”], 480:15-16 [“You have no idea what you’re talking about”], 483:10-11 [accusing Stallone of asking silly questions], 512:6-12 [when Stallone asked if making these comments because she is a woman, Porter answered “Yes”].) Porter’s inappropriate statements were admittedly motivated by Stallone’s gender. Such unprofessional conduct is sanctionable. (See Principe v. Assay Partners, 154 Mise 2d 702, 704 [Sup Ct, NY County 1992] [finding unprofessional conduct warranting sanctions where a male attorney stated to a female attorney: “I don’t have to talk to you, little lady”; “[t]ell that little mouse over there to pipe down”; “[w]hat do you know, young girl”; “[b]e quiet, little girl”; and “[g]o away, little girl”].) [Defense counsel’s] admission clarifies the context of his otherwise inappropriate statements permeating the nine-hour deposition as deliberately offensive and gender based when in context. In addition, [defense counsel’s] conduct is sanctionable because he clearly and repeatedly violated Commercial Division rules barring speaking objections.
Constantina Bacopoulou DDS v. Carnegie Dental, 2023 NY Slip Op 32085 (N.Y. Sup. Ct. 2023)(emphasis added).

As an interesting aside, in the Fourth Department had the non-party witness retained his own counsel, that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.” Thompson v. Mather, 70 A.D.3d 1436, 1438 (4th Dep’t 2010), see also, Sciara v. Surgical Association of West New York, 104 A.D.3d 1256, (4th Dep’t 2013). In a post-Thompson case, the New York County Supreme Court held, in part, that “counsel for a nonparty witness at a deposition may object under the permitted exceptions set forth in the Uniform Rules for the Conduct of Depositions.” Alba v. New York City Transportation Authority, 37 Misc. 3d 838, 841 (N.Y. Sup. Ct. 2012).

Notably, Rule 8.4(g) provides, a lawyer or law firm shall not:

(g) engage in conduct in the practice of law that the lawyer or law firm knows or reasonably should know constitutes:

(1) unlawful discrimination, or (2) harassment, whether or not unlawful, on the basis of one or more of the following protected categories: race, color, sex, pregnancy, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, gender expression, marital status, status as a member of the military, or status as a military veteran. (3) ‘Harassment’ for purposes of this rule, means physical contact, verbal conduct, or nonverbal conduct such as gestures or facial expressions that is: a. directed at an individual or specific individuals; and b. derogatory or demeaning.

Conduct that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment under this rule.

Beware of Responding in Kind

After discussing the sanctionable conduct by defense counsel, the Bacopoulou court noted that plaintiff’s counsel “contributed to the delay with unnecessary bickering with [defense counsel] and engaged in some speaking objections as well.” Andrea Masley, J.S.C., Constantina Bacopoulou DDS PC, supra.

Then, after setting forth the continuous delays in the action and the parties general inability to cooperate, the court noted “it is clear from the record that lack of civility among attorneys perpetuates scorn for lawyers, the courts, and ultimately the rule of law. ‘Society at large, and the legal community in particular, is increasingly less tolerant of sharp practices and sharp behavior that verges on harassment. It is a question of enlightened self-interest for lawyers and their clients to be tough yet civil.’ (Lawrence K. Marks, Jeremy Feinberg and Laura Smith, Section 86:1 Scope note, 4C NY Prac, Com Litig in New York State Courts Section 86:1 [5th ed.].)” Andrea Masley, J.S.C., Constantina Bacopoulou DDS PC, supra.

Ouch. Interestingly, (and perhaps, fairly,) the court, despite sanctioning defense counsel for “clear violations of the Rules of Professional Conduct 8.4(g),” was directing this statement at both attorneys in the action.

In its decision, the court notes that this non-party deposition “was excessive for this moderately important witness and in violation of the Commercial Division Rules limiting depositions to 7 hours.” The Bacopoulou case reminds us of another classic lawyer joke: Q: what’s the difference between a good lawyer and a bad lawyer? A: A bad lawyer can delay a case for years, but a good lawyer can make it take even longer.

While defense counsel in Bacopoulou was only sanctioned for the delayed service of subpoenas, and directed to pay a portion of the cost of this motion, and the cost attributable to the deposition, the court was empowered to impose greater sanctions.

In Hindlin v. Prescription Songs, 2022 N.Y. Slip Op. 32601 (N.Y. Sup. Ct. 2022) (sanctioning counsel for plaintiff $10,000, sanctioning counsel for nonparty witness $2,000, and directing both attorneys to attend a CLE on civility) [we pity the CLE instructor], the court found: Plaintiff’s counsel and the deponent’s counsel collectively intervened with arguments, speeches and aggressive colloquy 325 times in a 255-page transcript. That is far too often for counsel defending a deposition.

This is not the first time [plaintiff’s counsel] has exhibited this type of unprofessional, bullying behavior in this action, though it was only brought to this court’s attention with this motion. (See e.g., NYSCEF 954, Dec. 22, 2020, Jacob Hindlin Deposition Tr at 91:3-5 [Goodman: “You are not very good at asking questions, but you are very good at interrupting others.”], 95:23 [Goodman: “You are really obnoxious”]; NYSCEF 955, Dec. 23, 2020, Lukasz Gottwald Deposition Tr. at 79:14-15 [Goodman: “wipe that silly smile off your face”]; NYSCEF 956, Feb.12, 2021, Bruce Scavuzzo Deposition Tr. at 85:4-5 [Goodman: “you’re a joke”], 105:10-22 [Goodman: “You have no knowledge of the law at all. You’re a joke. … you’re nonsense.”]; NYSCEF 559, Special Master Conference Tr at 29:15-24 [Special Master: “Ok, Mr. Montclare. You are on mute sir …You’ve got to unmute yourself.” Montclare: “I said it’s nice to see you again …” Goodman: “You could have stayed on mute Paul. That would have been fine”].). “A lawyer’s duty to refrain from uncivil and abusive behavior is not diminished because the site of the proceeding is a deposition room, or law office, rather than a courtroom.” (Corsini v U-Haul International, 212 A.D.2d 288, 291 [1st Dept. 1995].

Conclusion

Wondering what can be done to stop bad behavior? Perhaps California is on the right track. In July of this year, the State Bar of California’s Board of Trustees approved proposed measures to improve the civility of attorneys who are authorized to practice law in California.

These changes include: “(i) Amendments to California Rule of Court 9.7 to require lawyers to annually affirm or reaffirm their civility oath; (ii) a new State Bar Rule 2.3 to implement the changes to the oath; and (iii) amendments to the Rules of Professional Conduct to make incivility a basis for discipline.”

As lawyers some of the most important lessons we learn are about what not to do, and the cases cited above are instructive on that. And we should all strive to do better.

Please see ALM.com for the full printed article.