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Things had gotten hot and Darrow’s rhetoric was blistering the paint off of the judge’s name plaque. “Mr. Darrow,” the judge interjected, “Are you attempting to show your contempt for this court?” Darrow paused, and smiled at the jury. “Goodness no, Your Honor. I am attempting to conceal it.” Words hurt. And we advocates know that if we use words as weapons, we can be held accountable for the use of excessive force. If we step over the line, we may be held in contempt (figuratively as well as literally) or we may otherwise be sanctioned. But what if the words are not ours? What if our client engages in verbal assaults beyond the pale? On Feb. 29 (only on Leap Day), Judge Eduardo Robreno of the Eastern District of Pennsylvania provided an answer. We are our clients’ keepers, and if we let them run wild, we will pay the price. Robreno sanctioned client and lawyer, jointly and severally, $30,000 for the use � entirely by the client, not the lawyer � of vulgar language and obstruction at a deposition. GMAC Bank v. HTFC Corp., No. CA 06-5291 (E.D. Pa. Feb. 29, 2008). Expletive deleteds make for some creative work GMAC took the deposition of Aaron Wider, president and owner of HTFC. Wider, who apparently is given to colorful language, made frequent use of language which we cannot repeat in this family (well, we make our families read our columns) publication. So we quote by rhymes and euphemisms: “I don’t give a flying duck.” “I’m going to give you a bass tickling.” “None of your chuckling business.” “Go get fornicated.” “I’m not your bucking pitch.” “You’re kissing me off.” “I’m not the one chasing $15 million, brass wipe.” “I don’t mucking give a spit.” “Don’t plucking threaten me, gas hole.” Well, you get the gist. In this breach of contract case, Robreno did a word search of the transcript and found the word “contract” only 14 times; but the word “****” (rhymes with “duck” and can be used by sailors and teenagers as a noun, verb, adjective or adverb) was used 73 times. A lawyer who uses language that disrupts a judicial proceeding is subject, if not likely, to be sanctioned. Muttering “Ah, twit” (we’re still rhyming here) at a bench conference was held to be criminal contempt. U.S. v. Ortlieb, 274 F.3d 871, 877 (5th Cir. 2001). An attorney who told a judge, “I am not taking this mucking slit” (or words sounding such) ended up taking a public reprimand from the New Jersey Supreme Court. In re Vincenti, 114 N.J. 275, 280 (N.J. 1989). And not just lawyers. Judges who use profanity are subject to sanction. In re Bennett, 403 Mich. 178, 189 (Mich. 1978) (“Judge Bennett used injudicious language, both on and off the bench, of a kind and to an extent that is violative of Canon 2 of the Code of Judicial Conduct”). And wayfarers � defendants, witnesses, observers � who wage profanity risk sanction. Consider this (rhymed) exchange: “The Court: I’m finding you in contempt of Court, for saying an obscenity in this courtroom . . . .Ninety days for contempt.” “The Defendant: Suck my stick for giving me another 90 days.” “The Court: Six months consecutive for contempt.” “The Defendant: Pluck your mother with a stick.” “The Court: Another six months consecutive for contempt.” One year plus 90 days in jail for three no doubt at the time highly satisfying moments of verbal machismo. Jackson v. Bailey, 221 Conn. 498, 501 (Conn. 1992). Witnesses, lawyers, judges � we are all responsible for our own off-color moments and outbursts. So no one should be surprised that Wider was sanctioned for 73 uses of a word that is a near-homonym but not, for him, a synonym of luck. But we were a little surprised that Wider’s lawyer took the hit with him. We were surprised because we grew up during the Chicago Seven trial. For those of you who were not following Neil Armstrong walk on the moon and Abbie Hoffman walk on an American flag in the late 1960s, a brief, albeit thoroughly slanted, history lesson. The Chicago Seven � originally the Chicago Eight until Bobby Seale made such a spectacle that Judge Julius Hoffman had him bound and gagged to a chair in the courtroom, and eventually severed from the case. The remaining defendants were demonstrators who came to Chicago to agitate to end the Vietnam War at the 1968 Democratic convention; the agitation led to a very public, very embarrassing scene in which Chicago police gassed and clubbed mostly college kids. To save a little face and to exact a little revenge, the seven were charged with crossing state lines to incite a riot. The ensuing trial turned out to be more public and more embarrassing than the original police action in Grant Park. During the trial, Abbie Hoffman and Tom Hayden appeared in judicial robes, took them off in front of the jury and stomped on them. The defendants lost no opportunity to heckle the judge; the lawyers lost no opportunity to accuse the judge of bias and impropriety. And the judge got even. After the defendants were found guilty of conspiracy, the judge imposed criminal contempt sentences on all seven � and on the two defense lawyers. William Kunstler, lead counsel, was sentenced to in excess of four years. All of the original sentences, all of the original contempt findings, were reversed on appeal; another judge later made contempt findings but imposed no fines or penalties. But the original contempt findings were based in part on the charge that the attorneys failed to aid the court in maintaining order. The 7th U.S. Circuit Court of Appeals found no such duty. “An attorney has no affirmative obligation to restrain his client under pain of the contempt sanction.” In re Dellinger, 461 F.2d 389, 400 (7th Cir. 1972). “Indeed, compelling an attorney to control the conduct of his client under threat of the contempt sanction might well destroy the confidence in the attorney-client relationship which is necessary to a proper and adequate defense.” The 7th Circuit specifically noted that it was expressing no view on whether it might be an ethical violation to stand idly by while one’s client goes wild. But the Chicago Seven lawyers were never brought up on disciplinary charges, and it is hard to find a clear ethics rule violated by their inaction. “Attorneys have a right to be persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting on their client’s behalf. “Furthermore, . . . where the line between vigorous advocacy and actual obstruction defied strict delineation, doubts should be resolved in favor of vigorous advocacy.” U.S. ex rel. Robson v. Oliver, 470 F.2d 10, 13 (7th Cir. 1972). Not so fast. “It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.” Illinois v. Allen, 397 U.S. 337, 343 (1970). Judicial proceedings must adhere to “standards of demeanor for court, jurors, parties, witnesses and counsel.” Dellinger, 461 F.2d at 401. Judge Robreno rightfully can hold parties and counsel to standards of demeanor. ‘Meek’ efforts at reining in client angers a court But Robreno did not need to worry about criminal contempt, due process or disciplinary rules. Because this conduct occurred at a deposition, the judge used rules 30 and 37 to make his point, and stick the point down Wider’s attorney’s (rhymes with) goat. A Rule 37 motion was filed seeking an order compelling answers that Wider’s profanities had not supplied. The motion was, of course, granted. And since Rule 37 requires, once a motion to compel is granted, that the court consider the propriety of sanctions, well � Duh! � the judge found that sanctions were appropriate, in the amount of the fees incurred to bring the motion � $13,000. Under Rule 30, the court imposed an additional sanction � the fees and expenses incurred to take the original worthless deposition � $16,000. Fine for Wider. (We mean that both ways.) But what about his lawyer? The judge noted that Rule 37 sanctions may be imposed against the person whose conduct necessitated the motion to compel and/or the “attorney advising that conduct.” Rule 30 sanctions may be imposed against an attorney who “impedes, delays or frustrates” the deposition. The court found that the attorney’s attempts to rein in Wider were “meek” and “his silent toleration of Wider’s conduct only emboldened Wider.” The court held that “An attorney faced with such a client cannot . . . simply sit back.” Thus holding, the court made the sanctions already imposed upon Wider joint and severable against the lawyer. But it ain’t over yet. The attorney has moved to withdraw; he has hired his own attorney, who has filed a motion to reconsider. But whether this attorney, on this case, gets a mulligan, it’s time to rethink our obligations when we are encountered by the beast, and the beast is our own client. We had always assumed that we had no obligation to step in if our clients act poorly, but that may be a bad assumption. We owe our clients a duty of confidentiality, but that duty does not constrain comment upon a public display. We owe our clients a duty of zealous representation, but that does not include silent acquiescence in outrageous conduct. We owe our clients a duty of loyalty, but it is simpering, not loyalty, to stand idly by when a client acts like a (rhymes with) duck. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers (ACTL) and partners at Chicago’s Jenner & Block. Solovy, the firm’s chairman emeritus, can be reached at [email protected]. Byman, past chair of the ACTL Federal Civil Procedure Committee, can be reached at [email protected].

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