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Last summer, New York attorney Judd Burstein caught the attention of the legal profession when he was sanctioned $50,000 for what a federal judge called “Rambo lawyering” for his representation of a client in a vitriolic fee dispute with her former attorney. But on Friday, the 2nd U.S. Circuit Court of Appeals found that Burstein’s behavior, which included a threat to another attorney that he would “conduct the legal equivalent of a proctology exam on your finances and billing practices,” was not sanctionable. A unanimous court made that ruling in Burstein v. Cinque & Cinque, 99-9427. The controversy over Burstein’s conduct erupted while he was advocating for Rommy Revson, who was trying to avoid paying a bonus to Cinque & Cinque for the law firm’s work in a patent and licensing dispute over the “scunci” or “scrunchy” elasticized hairband. Revson sued the New York firm alleging fraud and breach of fiduciary duty. Cinque & Cinque counterclaimed for the fair and reasonable value of its services, including a large bonus for the results it achieved in the litigation. At the close of trial, a jury found that Revson had discharged Cinque & Cinque without cause, and awarded the firm a total of $732,370. After the verdict, Southern District Judge Denny Chin, acting under both the court’s inherent power and 28 U.S.C. �1927, sanctioned Burstein for his conduct before and during trial. In addition to the proctology exam remark, Burstein also threatened to “tarnish” the reputation of Robert W. Cinque, accused the lawyer of unethical conduct, fraud and extortion, threatened to make claims of malpractice and racketeering and allegedly attempted to contact other clients of Cinque & Cinque. Judge Chin found that Burstein’s conduct, which also included “overly broad” subpoenas for all of the firm’s banking records and even records from the golf course where Cinque played, was “offensive, demeaning and abusive,” as well as “extortionate in nature.” On appeal, the 2nd Circuit reversed in an opinion by Judge Amalya L. Kearse, who said the appropriate standard for imposing sanctions requires a trial court to find clear evidence that the offending party’s claims were entirely meritless and the party acted for improper purposes. Judge Kearse said that “plainly the hostile tenor of this litigation gelled with Burstein’s letter’s reference to the legal equivalent of a ‘proctology exam.’ “ “Yet it is difficult to conclude that the letter constitutes grounds for sanctions,” she said. “Despite the harshness of the rest of the letter, we doubt that it would have been given much attention had it referred not to proctology but, for example to an X-ray, a CAT scan or an MRI.” While the reference to proctology was “offensive and distinctly lacking in grace and civility,” she said, “it is, regrettably, reflective of a general decline in the decorum level of even polite public discourse.” As for Burstein’s threat to “tarnish” Cinque’s reputation, Judge Kearse said ” an attorney is entitled to warn the opposing party of his intention to assert colorable claims, as well as to speculate about the likely effect of those claims being brought.” The court also said that Burstein’s threat to take some of the claims public, as well as his later interview with a reporter covering the case, did not provide the basis for sanctions. Judge Kearse said the court also felt the same way about Burstein’s threat to bring a civil racketeering claim against Cinque. “Although Burstein’s draft letter mentioned that use of the mails to perpetrate billing frauds has led to the criminal convictions of other attorneys, every viable RICO claim, whether civil or criminal, by definition involves some allegation of criminal conduct,” she said. “If the district court’s view were correct, no attorney could ever threaten to bring a civil RICO suit without violating the ethical rules.” UNKIND CHARACTERIZATION The 2nd Circuit, at least in the context of whether Burstein should be sanctioned, was not as troubled as was Judge Chin about Burstein’s characterization of Cinque as a “disgrace” to the legal profession or his repeated reference to Cinque as a “snake.” “…[A]lthough likening an attorney to a member of the animal kingdom may be opprobrious, such colorful tropes are not necessarily injudicious discourse,” Judge Kearse said. In the underlying case of Revson v. Cinque & Cinque, 99-7747, the 2nd Circuit also reversed Judge Chin on jury instructions and other matters and ordered a new trial, which means that Burstein and the firm of Cinque & Cinque will once again appear before Judge Chin. Judges Guido Calabresi and Robert Katzmann joined in the opinion. Burstein and Benjamin J. Stone of Burstein & McPherson represented Rommy Revson. Elkan Abramowitz and Elizabeth Small of Morvillo, Abramowitz, Grand, Iason & Silberberg represented Burstein. Robert W. Cinque and James P. Cinque represented their firm.

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