Michael Hoenig ()
Assume heated, contentious litigation ensues between opposing counsel. During a squabble over discovery Attorney A, in an e-mail, calls her adversary (Attorney B) a rather common, vulgar profanity that describes a portion of the anatomy. She also uses the crude words “sh–” and “fu–” in an admonition to her adversary not to build a record for filing some unmeritorious motion. To fortify this warning, Attorney A tells B she has “everything taped” so that the recordings will be used to blunt such a tactic.
Beyond the fact that attorney speech using profanities, vulgarities and threats to use surreptitiously made recordings against one’s opponent may not be nice behavior, does such conduct justify court intervention? If yes, what should it be? If yes, what is the source of the court’s power to sanction such behavior? Do vulgar epithets hurled at opposing counsel violate New York’s Rules of Professional Conduct? Does the making of surreptitious recordings of an opposing attorney or of counsel’s conversations with an adverse expert offend professional disciplinary rules? If yes, can the court intervene and, if so, how?
These questions boiled to the surface in proceedings before Southern District of New York U.S. Magistrate Judge James C. Francis IV in a case called Alexander Interactive v. Adorama.1 Magistrate Judge Francis issued his tight, neat, informative decision on June 26 in the form of a Memorandum and Order. The bottom line is that attorneys’ use of intemperate language can run afoul of professional conduct rules. The court can enforce state bar disciplinary rules. Ditto for making surreptitious tape recordings of conversations with adverse counsel or his expert. Here is what happened.
Adorama, an electronics retailer, contracted with Alexander Interactive (AI) to develop a new website. The project was unsuccessful, and the parties’ relationship broke down. AI sued, claiming breach of contract, misappropriation of its proprietary software and, later, defamation. Adorama counterclaimed, asserting wrongful termination of the contract, failure to meet deadlines, misrepresentation of AI’s capabilities and delivery of substandard work. Discovery became contentious. In January, Judge Francis authorized Adorama to have its expert conduct a forensic examination of aspects of AI’s computer system.
Following a partial inspection by the expert, Adorama’s attorney (“B”) sent an email to AI’s counsel (“A”) saying that the continued inspection set for the following day would not proceed as planned. The reason was plaintiff’s advice to the defense expert that two of its hard drives had been damaged or “wiped” and no longer contained relevant data. Further, the expert was unable to access backup information because of poor Internet connectivity on site at AI.
This email message was not warmly received. Attorney A responded, disputing her adversary’s assertions. She concluded her response as follows: “You’re an asshole….I have everything taped. And yes, under N.Y. law and the rules of professional conduct, it’s allowed. If you think you’re going to sully my clients with your fictions, you’re a fool. If you try any shit with the court, I welcome it. We have provided all requested data, all requested backups and have provided it in an orderly and accessible manner, unlike your clients.” Attorney A closed with the following: “Don’t fuck me. I’m done with your unethical behavior. Any motions by you, if you’re trying to build a case for some unmeritorious motion to deflect from your clients’ unethical behavior, will include my recordings from today. Please govern yourself accordingly.”2
This missive by A resulted in Attorney B bringing the conflict to the attention of Judge Francis. B asked that A be admonished for her profanities. He also contended that the tape-recording of Adorama’s experts was improper and, thus, asked that A be ordered “to produce the original recording and any other surreptitious recordings she may have made.”
A responded. She apologized for using vulgarities. She attributed her conduct to being tired and angry, but as the court noted, “she also argued that B had engaged in inappropriate and intimidating behavior during meet and confer sessions and depositions by shouting at her and telling her to ‘shut up’.” A attached deposition transcripts to her letter to the court and offered to provide videotapes of the depositions for the court’s review.
With respect to the surreptitious tape recording, A said: “I can represent to this Court, under penalty of perjury, that no such taping took place.” She explained that “[m]y purpose in stating that the conversation was taped was to compel honest conduct by [Attorney B], his clients and their experts.” Further, argued A, even if she had made such a recording, it would not have been a violation of professional ethics. The foregoing facts led the court into a discussion, separately, about intemperate language and undisclosed tape recording.
Although federal courts do not generally enforce state bar disciplinary rules, they have “inherent power” to address attorney misconduct during litigation.3 In doing so, they frequently look to professional conduct standards in the state where the federal court sits.4 Rule 8.4(h) of the N.Y. Rules of Professional Conduct [formerly Disciplinary Rule 1-02(A)(7)] provides that “[a] lawyer or law firm shall not engage in any conduct that adversely reflects on the lawyer’s fitness as a lawyer.” Similarly, Rule 8.4(d) [formerly DR 1-102(A)(5)] proscribes conduct that is prejudicial to the administration of justice.”
Magistrate Judge Francis stated that it is “well established” that the use of “vulgar, insulting, and offensive language” toward an adversary in litigation “constitutes a violation of these rules.”5 Here, however, the gravity of Attorney A’s misconduct was “mitigated somewhat” by her recognition of the impropriety and her apology. Further, A’s suggestion that she was overwrought when creating the offending email is “corroborated” by the fact that it was sent at 12:22 a.m. In the clear light of day, said the court, “she might have used better judgment and pressed ‘delete’ instead of ‘send.’”
A’s contrition, however, was “undercut” by her attempt to deflect the blame to her adversary. The court reviewed the videotaped depositions as well as the transcript excerpts provided and could find nothing that would support A’s position. Both counsel, to be sure, occasionally became heated but Attorney B’s most strident behavior was to tell A, “Enough.” B generally admonished A only when she appeared to coach a witness by making speaking objections or when “she directed the witness not to answer even though no privilege was being asserted.” Therefore, the court “cautioned” Attorney A that “incivility among counsel will not be tolerated” and that “any similar misconduct in the future will warrant the imposition of sanctions.” This potentially could include relieving A from representing any party in this action.
The court then turned to the issue of undisclosed tape recordings and observed: if A had tape-recorded her conversation with defendant’s expert without disclosing that she was doing so, she likely would have violated Rule 8.4(c) of N.Y.’s Rules of Professional Conduct. This prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” A urged that Formal Opinion 2003-02 of the N.Y. City Bar Association’s Committee on Professional and Judicial Ethics had concluded that not all undisclosed recording by an attorney should be considered unethical. But, Judge Francis noted that the committee “remained of the view…that undisclosed taping smacks of trickery and is improper as a routine practice.”
Although the committee said that undisclosed taping, if done under circumstances that can be said to “further a generally accepted societal good” will not be regarded as unethical, A’s alleged recording here hardly seemed to fit within this “safe harbor.” A argued that the proposed taping’s purpose was to “compel an honest recitation” of the plaintiff’s conduct in this case by B. That is a “generally accepted societal good.”
The court, however, rejected this interpretation. Were it otherwise, “the exception would swallow the rule.” Counsel could then always represent that their intent in making a surreptitious recording was to keep the adversary honest. Indeed, the city bar committee’s report provides “much narrower” examples where undisclosed taping might be acceptable (e.g., investigation of ongoing criminal activity; significant misconduct; or conversations with persons who previously threatened an attorney or a client).6
Magistrate Judge Francis saw no need to define the “precise contours” of the proscription against surreptitious recording because, in this case, Attorney A represented under penalty of perjury that, in fact, she did not make such a recording. Rather, she pretended to have made one “to compel honest conduct” by B, his clients and experts. But the court viewed this “in itself” as an “acknowledgment of having engaged in deceit and misrepresentation.” Therefore, A was “admonished to abide by her duty to deal with opposing counsel with candor.” Additionally, within 10 days, she must “produce any undisclosed recordings she has made or caused to be made in connection with this case or shall provide an affidavit stating that none was made.” The court closed with the expectation that A will comply with her obligations and that “there will be no further need to address her conduct.”7
The computer age has ushered in an era of great promise, an age of accessible information in which all kinds of learning and wholesome communications can flourish. With dazzling speed, emails can express, in nearly real time, what the author is thinking. However, what one thinks at a given time is not necessarily what one should say. That is particularly true for lawyers who, after all, have to represent their clients, not just themselves.
The speed, ease and seeming informality of email exchanges can, on occasion, trigger poorly worded messages that, in hindsight, the lawyer will regret sending. It is helpful to remember that a litigator’s speech and writings are his or her armaments of war. But those weapons cannot be of the outlawed, forbidden kind. Professional protocols proscribe profanities and vulgar insults. And, as Magistrate Judge Francis has observed, undisclosed, surreptitious recordings of one’s adversary lawyer or expert are, in most cases, also off limits.
Michael Hoenig is a member of Herzfeld & Rubin.
1. 12 Civ. 6608 (S.D.N.Y. June 26, 2014) (Magistrate Judge James C. Francis IV), New York Law Journal, July 3, 2014; http://www.newyorklawjournal.com/id=1202661703410.
2. Alexander Interactive, Id., at *3.
3. Id., at *4-*5 (citing In re Snyder, 472 U.S. 634, 645 n. 6 (1985); United States v. Seltzer, 277 F.3d 36, 40-42 (2d Cir. 2000); Handschu v. Police Dep’t of the City of N.Y., 679 F.Supp.2d 488, 501-03 (S.D.N.Y. 2010)).
4. Id., at *5 (citing Coggins v. County of Nassau, 615 F.Supp.2d 11, 30 n. 8 (E.D.N.Y. 2009); Richards v. City of N.Y., No. 97 Civ. 7990, 2000 WL 139635, at *4 (S.D.N.Y. Feb. 2, 2000)).
5. Id., at 5 (citing In re Chiofalo, 78 A.D. 3d 9, 10-11, 909 N.Y.S.2d 36, 37 (1st Dept. 2010) (per curiam) (lawyer sent “hostile, obscene and derogatory” communications to wife and her attorneys during divorce proceedings); In re Schiff, 190 A.D.2d 293, 294, 599 N.Y.S.2d 242, 242-43 (1st Dept. 1993) (per curiam) (counsel was intimidating and abusive and directed vulgar, obscene and sexist epithets to adversary during deposition)).
6. Id., at *8-*9.
7. Id., at *9.