The lawyer who was hit with sanctions for failing to rein in a foul-mouthed client is now asking a federal judge for permission to drop the client and begging for the sanctions imposed on him to be lifted.
The Feb. 29 decision by U.S. District Judge Eduardo C. Robreno in GMAC Bank v. HTFC Corp. 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. 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.
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 the video shows that his lawyer at one point "snickered" at his client's conduct.
His lawyer, Ziccardi, was also to blame, Robreno found, because he failed to stop his client's tirades and persuade him to answer questions.
"The nature of Wider's misconduct was so severe and pervasive, and his violations of the Federal Rules of Civil Procedure so frequent and blatant, that any reasonable attorney representing Wider would have intervened in an effort to curb Wider's misconduct," Robreno wrote.
Robreno levied sanctions of $29,322.61 and ruled that Wider and Ziccardi are jointly and severally liable. But court records show that ever since then, Ziccardi has been urging Robreno to reconsider the sanctions, arguing that he was not the lawyer who "snickered," and that he was never given proper notice that he faced sanctions under Rules 30 and 37 of the FRCP.
Attorney Samuel C. Stretton of West Chester, Pa., has also entered his appearance for Ziccardi and, in a separate motion, Ziccardi is asking that he be allowed to withdraw from the case because the sanctions issue has created a conflict between himself and Wider.
"As a result of this ruling, a conflict of interest has arisen between the undersigned and the representative of defendant, such that continued representation of the defendant in this case by the undersigned is impossible, and would likely constitute a violation of the Pennsylvania Rules of Professional Conduct," Ziccardi wrote.
In the motion, Ziccardi said he has explained the nature of the conflict to Wider and that Wider has consented to his withdrawal.
In his motion for reconsideration of the sanctions, Ziccardi argues 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 argues, his "opportunity to be heard was meaningless."
As a result, Ziccarrdi argues, the judge was "deprived of the opportunity to engage in meaningful fact-finding that would have revealed the falsity of certain key 'facts' on which the court largely based its ruling."
The evidence, Ziccardi argues, 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, Robert B. Bodzin of Kleinbard Bell & Brecker in Philadelphia, 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 says 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 are affidavits from both Ziccardi and Voulo that say Voulo is the "counsel" who chuckled or "made some other non-verbal comment" at Wider's offensive conduct.
As a result, Ziccardi argued, "the court's conclusion that Ziccardi 'joined in Wider's offensive conduct' is clearly in error."
Ziccardi also argues 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."
Bodzin, in response to Ziccardi's motions, has filed responsive briefs that urge Robreno to uphold the sanctions and not to allow Ziccardi to withdraw from the case until substitute counsel enters an appearance. Ziccardi was clearly on notice that he was personally facing monetary sanctions, Bodzin argues, because a transcript of a telephone conference shows that Robreno raised the issue several weeks before the hearing. According to a section of the transcript contained in Bodzin's brief, Robreno said: "This is a serious matter and I will tell you that I've been around civil proceedings for 30 years, both as a lawyer and as a judge. I've never seen anything like this."
Robreno went on to say that Wider would have an opportunity to explain his conduct at the hearing, and then focused on whether Ziccardi shared responsibility.
When a deposition witness obstructs the proceedings, Robreno said, "I don't think counsel can just sit idly by and do nothing."
Robreno later said: "At least at first glance, Mr. Ziccardi, I think your conduct implicates the Rules of Professional Conduct 3.4, 3.5 and 8.4. It doesn't mean you have violated them, but they have been implicated and I think they need to be explored."
According to the transcript in Bodzin's brief, Robreno said he would issue a rule to show cause why Ziccardi's pro hac vice admission should not be revoked, whether the matter should be referred to a disciplinary board, and "whether or not financial penalty should also be imposed."
Bodzin, in his response brief, argues that Robreno's comments during the telephone conference show that "the notion that Ziccardi was denied procedural due process is clearly contradicted by the record."
At the hearing, Bodzin argues, "neither Wider nor Ziccardi apologized or offered any explanation for their conduct."
Instead, Bodzin argues, "Ziccardi presented a disingenuous argument that showed little remorse and aggravated, rather than mitigated, the severity of Wider's and Ziccardi's conduct."
Bodzin argues that Ziccardi is now "unhappy with the result of [his] ill-advised strategy," and is effectively asking the court for "a 'do-over' by offering new evidence."
But Bodzin argues that the newly presented evidence shouldn't change the judge's decision.
"While the video record may be unclear as to whether it was Ziccardi and/or his co-counsel, Raymond Voulo, who 'snickered,' both Ziccardi and Voulo acted as a team in representing Wider throughout his depositions," Bodzin wrote.
Ziccardi did not return a call seeking comment. Bodzin declined to comment.
