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?
