A federal judge in Philadelphia has refused to reconsider the sanctions he imposed on a Chicago lawyer for failing to rein in a foul-mouthed client during a deposition, declaring that although the lawyer wasn't informed of the precise rule he would be sanctioned under, he was nonetheless able to, and did, mount a "meaningful defense."
In a Feb. 29 decision in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno imposed sanctions of more than $29,000 on attorney Joseph R. Ziccardi of Chicago and his client, Aaron Wider, whose alleged misconduct included dropping 73 "F bombs" during his deposition.
Robreno found that Wider, the chief executive officer of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."
Wider used the word "fuck" or variations of it 73 times during the deposition, Robreno noted, and, according to the court, the video showed that his lawyer at one point "snickered" at his client's conduct. Throughout the deposition, Robreno said, Wider "sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity."
In one passage, GMAC's lawyer, Robert B. Bodzin of Kleinbard Bell & Brecker in Philadelphia, asked Wider to open a file so that Bodzin could ask questions about certain documents. According to the transcript, Wider erupted, saying: "‘I'm taking a break. Fuck him. You open up the document. You want me to look at something, you get the document out. Earn your fucking money asshole. Isn't the law wonderful?"'
Ziccardi was also to blame, Robreno found, because he failed to stop his client's tirades and persuade him to answer questions.
The ruling created a sensation in the blogosphere as a slew of commentators linked to the decision as the latest example of a litigant gone wild.
Soon after, Ziccardi moved to withdraw as Wider's lawyer. Ziccardi hired attorney Samuel C. Stretton to represent him in seeking to have the sanctions lifted.
In his motion for reconsideration of the sanctions, Ziccardi argued that he was deprived of his right to due process because Robreno failed to put Ziccardi on notice "as to the particular tool that the court was considering employing to sanction him."
And since the notice was deficient, Ziccardi argued, his "opportunity to be heard was meaningless." The evidence, Ziccardi argued, shows that he never joined in his client's offensive conduct "by chuckling or otherwise."
In a footnote in his February opinion, Robreno said the video showed Ziccardi "chuckling at Wider's abusive behavior" and that GMAC's lawyer commented that "your snickering, counsel, is not appropriate either because all you're doing is encouraging the behavior of your client."
But in his motion for reconsideration, Ziccardi said that "the 'snicker' referenced by Mr. Bodzin in the deposition was that of Raymond Voulo, the deponent's New York counsel."
Attached to the motion were affidavits from both Ziccardi and Voulo that said Voulo was the lawyer who chuckled or "made some other non verbal comment" at Wider's offensive conduct. Ziccardi also argued that he did not "sit idly by" as a "mere spectator," as Robreno found, but instead that he made "significant, repeated efforts to curb his client's behavior ... in large part, off the record, as is completely proper."
Now Robreno has rejected all of Ziccardi's arguments, finding that the technical flaw identified by Ziccardi did not amount to a violation of the lawyer's due process rights and that none of the factual issues would change the judge's mind.
In a 32-page decision, Robreno recounted the history of the sanctions proceedings in detail, noting that Ziccardi was warned that the court was considering monetary sanctions on Ziccardi for his failure to take action.
In those initial warnings, Robreno acknowledged that he at first suggested that sanctions were being considered under the Pennsylvania Rules of Professional Conduct, but that his February decision imposed the sanctions under Rules 30(d)(2) and 37(a)(5)(A) of the Federal Rules of Civil Procedure.
But Robreno found that the technical flaw was inconsequential because Ziccardi was fully on notice of the nature of the conduct the court would focus on, as well as the form of sanctions being considered and therefore was fully able to mount a defense.
Robreno distinguished Ziccardi's case from Jones v. Pittsburgh National Corp., a 1990 decision by the 3rd U.S. Circuit Court of Appeals that overturned sanctions where the lawyer was initially warned of Rule 11 sanctions but was ultimately sanctioned under Section 1927.
The problem in Jones, Robreno said, was that Section 1927 requires a showing of bad faith, and Rule 11 does not, and the lawyer was therefore not aware that he was being charged with bad faith conduct, and didn't have a meaningful opportunity to refute such a charge.
By contrast, Robreno said, Ziccardi "was not deprived of any such opportunity to refute a charge."
In the sanctions hearing, Robreno said, Ziccardi defended himself against the charge of inaction by arguing that his intentions were good, that he made certain efforts off the record and that the court should not second-guess his decisions under difficult circumstances.
Robreno said he had "considered and rejected these arguments," and sanctioned Ziccardi for his "persistent inaction in the face of Wider's gross misconduct."
But even if Ziccardi was given inadequate notice of the sanctions being considered, Robreno found that Ziccardi had already received the only relief he would be entitled to -- adequate notice and another opportunity to be heard.
"The court has for all practical purposes already provided this relief to Ziccardi," Robreno wrote. "At the June 18, 2008 hearing on the instant motion, Ziccardi was given an opportunity to -- and did in fact -- reargue the merits."
As for Ziccardi's claim that he was not the lawyer who snickered at Wider's conduct, Robreno said the court's initial mention of that fact was dicta and "not necessary to the court's decision to sanction Ziccardi, which was based on his inaction, not his actions."
Robreno said he had also assumed Ziccardi was telling the truth about his off-the-record attempts to control Wider's conduct.
As a result, Robreno rejected Ziccardi's argument that the Federal Rules of Civil Procedure do not impose a duty on a lawyer to admonish a client on the record against frustrating a deposition.
"The sanctions order was not dependent on any such duty," Robreno wrote. "The court did not refuse to consider Ziccardi's off-the-record efforts, but instead found them to be insufficient in light of both Wider's continuing misconduct and Ziccardi's on-the-record conduct."
Finally, Robreno rejected Ziccardi's argument that the court had unfairly imposed a duty on Ziccardi to terminate the deposition, and thereby improperly second-guessed Ziccardi's decision as to the timing of such a consequential decision.
"In close cases, it may be difficult for the court to second-guess the attorney's judgment; after all, only the attorney actually attended the deposition and witnessed the specific problems first-hand. But this is not a close case," Robreno wrote.
Instead, Robreno found that Ziccardi "allowed the deposition to drag on for over two days and nearly 12 hours of testimony, much of which was an unmitigated waste of time and resources," and that he "never once suggested that the ill-fated deposition be adjourned."
As a result, Robreno concluded that "although courts would be wise to hesitate in close cases before second-guessing an attorney's judgment as to when a deposition should be terminated, no such pause is warranted here."
Stretton, in an interview Friday, said he "respectfully disagrees" with Robreno's decision and believes it "sets a bad precedent for lawyers" by failing to recognize the significant efforts Ziccardi made in his off-the-record conversations with Wider during the deposition.
Although no decision has yet been made about whether to appeal the sanctions, Stretton said that he intends to recommend that Ziccardi file an appeal.
Bodzin could not be reached for comment.