After Lawyer Curses Adversary During Deposition, Judge Orders Attorneys to Dinner Summit

Shannon P. Duffy

The Legal Intelligencer

Correction: In the 14th paragraph, the following quote from Lewis P. Hannah in a deposition was wrongly attributed to James E. Ellison: "Shut up. You are such an a-hole."

A lawyer who resorted to cursing and name-calling during a deposition has been hit with a creative sanction by a federal judge.

Instead of imposing any monetary punishment, U.S. District Judge Gene E.K. Pratter ruled that attorney Lewis P. Hannah must take a CLE class on "civility and professionalism" and -- in a novel twist -- ordered that he also sit down for a meal with his opponent.

In her 12-page opinion in Huggins v. Coatesville Area School District, Pratter ordered that Hannah and his opponent, James E. Ellison of Rhoads & Sinon in Harrisburg, Pa., "join each other for an informal meal in an effort to facilitate the repair of their professional relationship."

Pratter said she was inspired by a quote from Shakespeare's "The Taming of the Shrew":

"And do as adversaries do in law, Strive mightily but eat and drink as friends."

The bard, Pratter said, "apparently believed that the legal profession provided a useful example for achieving civility." By ordering Hannah and Ellison to go to a Dutch treat lunch or dinner together, Pratter said, she hoped that "perhaps the adversaries in this case can be reinspired to achieve the Shakespearean vision and the aspirational goals of the very rules of professional conduct by which counsel have pledged to abide."

In the motion for sanction, Hannah was accused of using the word "asshole" four times during the deposition when referring to Ellison.

Ellison, who is black, also said in the motion that he decided to end the deposition when Hannah referred to Ellison as a "boy."

Such a racially charged epithet was "ironic," Ellison argued, because Hannah's client is a black man who claims he was fired from his post as a school janitor in retaliation for lodging a formal complaint that a white female principal had called him a "boy."

Hannah, who is also black, conceded in an interview that he had used the word "boy" to refer to Ellison, and that he recognizes it was wrong to do so, but also said that "the context is different when one black man is saying it to another black man."

When asked about Pratter's order that the two lawyers share a meal and try to repair their professional relationship, Hannah said, "I think it's an excellent idea."

Hannah said that in a hearing on the sanctions motion he "told the court I should not have acted as I did" and that the only explanation he could offer for his remarks was that it occurred in "the heat of battle."

Ellison, in a phone interview, said the shared meal could lead to settlement talks and that he doesn't anticipate "any more problems" in getting along.

Court papers included portions of the deposition in which Hannah's temper flared. At one point, Hannah said to Ellison: "Let's get the judge on the phone, you asshole, if you want to waste time." At another point, Hannah said: "Shut up. You are such an a-hole."

Pratter, in recounting the facts in her opinion, steered clear of repeating any vulgarities, saying, "the exchanges between the attorneys became, to say the least, heated, personal, rude, and pointless."

After reviewing the transcript of the aborted deposition, and after hearing each of the lawyers' descriptions, Pratter concluded that "both attorneys contributed to the escalation of tensions and the descent of their behavior at the deposition."

But Pratter singled out Hannah for stiffer criticism, saying it was he who had "ratcheted the acrimony higher and the standards lower, using a few choice epithets for Mr. Ellison, by angrily referring to defense counsel at least four times as, among other things, a certain unattractive endpiece of anatomy."

Turning to the state and federal rules for guidance, Pratter found that lawyers have an ethical duty to be civil to each other and to others.

Rule 30(d) of the Federal Rules of Civil Procedure, Pratter noted, "was amended in 1993 to respond to a rise in reports of misconduct in depositions." A published note to the rule says: "In general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer."

Similarly, Pratter said, Rule 3.5(d) of the Pennsylvania Rules of Professional Conduct says that a lawyer shall not "engage in conduct intended to disrupt a tribunal," and the definition of "tribunal" includes depositions.

Pratter found that "Hannah's offending outbursts ... were undeniably disruptive. It was not merely a single, isolated incident."

But Pratter also noted that Ellison "admits that he engaged in a heated argument with plaintiff's counsel during the deposition, and that he and the witness were the ones to walk out after a deposition break." As a result, Pratter concluded that "the arguments and name calling that erupted at the ... deposition may not have been entirely one-sided and may not have been the exclusive reason for delayed and more costly discovery."

But while Ellison shared some of the blame, Pratter concluded that it was Hannah who should be sanctioned because "treating an adversary with advertent discourtesy, let alone with calumny or derision, rends the fabric of the law."

Pratter said she opted not to impose any monetary sanctions because she wanted to craft a punishment that would "have greater long-term substantive effect." For that, she ordered Hannah to "attend a CLE course dealing with civility and professionalism" within the next six months.

As for the breaking of bread, Pratter instructed that the meal must occur within six weeks because her goal is to get the lawyers to work amicably on the remainder of the case.

"Because this case has not yet concluded and because defense counsel is not without blame for the embarrassing conduct of the professionals here, inasmuch as the working relationship between these opposing counsel will necessarily continue, the court also will expect Mr. Hannah and Mr. Ellison to join each other for an informal meal," Pratter wrote.

Although each lawyer must pay his own fare, Pratter instructed that they must file a written account of the date.

After the meal, Pratter ordered, "counsel then will submit a joint status report to inform the court of their efforts to restore their conduct in this case to a level of professionalism for attorneys practicing before this court that more closely approximates the conduct espoused by the civility codes and enactments referenced in this memorandum."