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Court Supervision of Attorney Ordered due to Lack of Civility
N.Y. judge finds lawyer's 'objectionable conduct' toward opposing counsel reflected gender bias
New York Law Journal
December 12, 2007
A New York judge has ordered court supervision of a lawyer for "objectionable conduct" toward a female opposing counsel who he said had a "cute little thing going on" during a deposition.
According to transcripts of the deposition, Thomas B. Decea of Danzig Fishman & Decea in White Plains also called Michelle A. Rice of Arkin Kaplan & Rice "hon" and "girl" and asked her why she was not wearing a wedding ring.
Manhattan Supreme Court Justice Carol Edmead ruled last week in Laddcap Value Partners, LP v. Lowenstein Sandler, PC, 600973-2007, that a special referee would oversee all future depositions in the case to monitor Decea's conduct and that all depositions would take place in the courthouse.
The judge said Decea's behavior reflected gender bias as well as "a lack of civility, good manners and common courtesy." She said the appointment of a referee was a means of "guarding against future objectionable conduct" by Decea.
But Decea on Tuesday denied acting inappropriately. He vowed to appeal Edmead's decision and said many of his comments were wrongly transcribed or taken out of context. He also accused the judge of violating his right to due process by not providing him with copies of the deposition transcripts on which she based her order.
The underlying case is a legal malpractice suit filed by a hedge fund against its former law firm. Decea, 48, was the lawyer for hedge fund Laddcap Value and its manager, Robert B. Ladd. Rice, 46, was representing the fund's former firm, Lowenstein Sandler of Roseland, N.J.
The fund claims Lowenstein Sandler made mistakes that bogged down in costly litigation Laddcap's efforts to reform corporate governance at a company in which it was the largest shareholder. The law firm claims Laddcap is merely trying to avoid paying its legal bill.
The conduct Edmead found objectionable took place during the October deposition of Ladd. According to the transcript cited by the judge, Decea took issue with Rice's use of leading questions and suggested that she did not know how to take a deposition.
"This is not a white collar interview that you're sitting here interviewing something with your cute little thing going on," Decea said, according to the transcript, later telling her it was "nothing personal, dear."
After Rice told Decea she thought his comments were indeed personal and offensive, he said: "Your skin is getting thin now."
At another point in the deposition, Decea referred to Rice as "hon." After she questioned his use of the term, Ladd jumped in to suggest that Decea had meant Hun "[a]s in Attila" and that the remark was not personal.
"As in Attila? I don't even understand that," Rice replied.
Later in the deposition, Decea questioned Rice's ability to try the case.
"You better get somebody else here to try this case, otherwise you're going to be one sorry girl," he said.
Rice, who last year became a name partner at the white-collar defense boutique led by well-known litigator Stanley S. Arkin, moved for the appointment of a special referee a few days after the end of the depositions, arguing that Decea's conduct was intended to intimidate her and interfere with her advocacy in violation of New York's Code of Professional Responsibility as well as court rules adopted last year proscribing obstructive behavior at depositions.
Decea had opposed the motion on the grounds that he was "not aware of any rule or law which requires civility between counsel."
The judge described his contention as "baffling."
She also noted that a number of judges had in the past been publicly reprimanded for referring to female lawyers as "little girl" or "young girl." She pointed out that the Commission on Judicial Conduct had said such words were "calculated to demean the lawyer."
Though the judge pointed out that conduct like that of Decea had been found sanctionable in the past, Rice did not seek sanctions against Decea.
"We felt the most measured response to his inappropriate behavior was supervision of his behavior going forward," she said Tuesday.
She declined further comment, saying the judge's decision spoke for itself.
Decea said Tuesday that he strove to treat all his fellow lawyers with respect. He said the "cute little thing" remark in particular had been taken out of context and said there were statements in the transcript attributed to him that he never made. But he also said he did not think there was anything in the transcript that was inappropriate.
