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Judge Scolds Lawyer for 'Verbal Assault' of Opposing Counsel
Solo rebuked for comments made, during a deposition, about opposing attorney's memorial pin for son killed in Iraq in January
Fulton County Daily Report
June 24, 2008
A judge has called the conduct of an Athens, Ga., lawyer "so ignoble as to bring the legal profession in disrepute."
In a strongly worded June 11 order related to motions for attorney fees in a personal injury case, Western Judicial Circuit Superior Court Judge David R. Sweat rebuked James W. Smith for "disturbing" remarks he made about a small pin worn by opposing counsel Andrew H. Marshall. The pin, a gold star on a purple background, was given to Marshall by the Army to honor his 21-year-old son, Evan Marshall, a soldier killed in an ambush near the Iraqi city of Mosul in January.
Sweat termed Smith's remarks a "verbal assault" that was "intended to provoke Marshall on a matter of great personal tragedy."
Smith, a solo practitioner who ran unsuccessfully in 2000 for Athens-Clarke County district attorney, declined to discuss the case on the record.
Marshall, of Begnaud & Marshall in Athens, Ga., said he has a long history with Smith. The two graduated just a year apart from the University of Georgia School of Law, though they did not know each other, and have even sung together in the choir at the First Presbyterian Church of Athens. Marshall remembers litigating his first case in Clarke County against Smith more than 30 years ago and "pretty much every case that I've ever had with him has been contentious to a greater or lesser extent."
That was certainly the mood during two recent depositions taken in the case where the acrimony arose. The trouble began in the first deposition in a still-pending personal injury suit filed against the Unified Government of Athens-Clarke County. Smith represented the plaintiff, who allegedly was injured at a county landfill. Marshall represented the government.
Sweat's order quotes liberally from the two depositions, which show the lawyers' contentious attitudes even before Smith's remarks about the pin.
In the first deposition, taken at Marshall's law office April 15, the lawyers disagreed about whether the plaintiff should have to discuss crimes he'd committed if they were more than 10 years old.
When Marshall pushed the plaintiff to recount his past crimes even after the plaintiff claimed he could not remember them, Smith, according to the transcript, told Marshall, "Don't raise your voice at my client, sir," later adding, "You can't browbeat my client" -- something Marshall denied doing.
After some further verbal disagreements between the lawyers, Smith, with no preamble, asked about the pin Marshall was wearing, according to the transcript.
Mr. Smith: What's the little pin on your shirt mean? What's that little pin mean?
Mr. Marshall: It means I had a son that was killed in action serving his country.
Mr. Smith: So that gives you the right to browbeat my client?
Mr. Marshall: No. It has nothing to do with this deposition.
Mr. Smith: Well, fine then.
The Witness: Then why do you want to do that to another veteran, because you're mad at the United States?
Mr. Marshall: No, I'm not mad at the United States.
The Witness: Well, I'm proud of your son dying for me.
Mr. Marshall: Well, my son -- that's not what I'm here to ask questions about.
The Witness: He was just asking you about the pin.
Mr. Marshall: Well, I told him what the answer was.
The Witness: OK. You don't have to be smart with me. But I thought we was talking about the dump.
Mr. Smith: Supposed to be. He's just trying to --
The Witness: Yeah. Intimidate somebody.
A week later, on April 22, Marshall and Smith met again at Marshall's office to depose a different witness from the same case. Once again, the lawyers could not agree on the scope of the questions. Marshall asked the witness whether Smith had represented him in other legal matters; Smith said the question was not relevant. After some testy back-and-forth between the lawyers, Marshall, according to the transcript, said he wanted to terminate the deposition.
Mr. Marshall: We're terminating this deposition. I'll be seeking a court order requiring you to pay my attorney's fees as well as Mr. Smith.
Mr. Smith: Why don't you go jump in a lake, Drew? Why don't you go over there -- Where's your pin today?
Mr. Marshall: I'll be serving you with --
Mr. Smith: Where's your pin today?
Mr. Marshall: Get out of my office.
Mr. Smith: Don't ever have another deposition set up here. Don't you hit me.
Mr. Marshall: I'm not going to hit you.
Mr. Smith: We got witnesses.
Mr. Marshall: Don't disrespect my son.
Mr. Smith: I didn't disrespect your son.
Mr. Marshall: Yes, you did.
Mr. Smith: That's a lie. You're disrespecting me by telling my witness what he has to reveal about representation.
After that second deposition ended abruptly, both Smith and Marshall filed motions for attorney fees.
Smith alleged in his motion that Marshall "abruptly terminated the deposition before any additional questions were asked upon the witness claim of attorney-client privilege."
Sweat denied Smith's request for attorney fees, but granted Marshall's, which asserted that Smith's fee motion lacked substantial justification and was interposed for delay or harassment, and that Smith's questions in both depositions were deliberate and willful attempts to provoke.
"The Court finds and concludes that the motion was substantially frivolous, substantially groundless, and substantially vexatious, and therefore lacked substantial justification," Sweat wrote of Smith's motion.
Sweat saved his strongest words for the exchange over the pin. "While Defendant's counsel personally seeks no remedy for this heartless attack, the Court cannot avoid its responsibility to condemn conduct that is not only decidedly lacking in the civility due to a fellow member of the bar, but is so ignoble as to bring the legal profession in disrepute," Sweat wrote. "At the hearing, Mr. Marshall characterized his response in directing Mr. Smith to leave his office as not the most professional thing to do. Given Mr. Smith's ignominious conduct, Mr. Marshall's response seemed restrained."
Sweat's scolding of Smith has caused a stir in the Athens legal community. "I've gotten a lot of communications from my fellow lawyers about this," Marshall said.
The decision has been read widely, no doubt in part because the judge has given it additional distribution. The order shows that in addition to sending copies to all the Superior Court judges in the Western Circuit, which includes Clarke and Oconee counties, Sweat also has sent a copy to the Office of the General Counsel at the State Bar of Georgia.
