Samuel C. Stretton. Samuel C. Stretton.

Recent case raises issue of statute of limitations claim in debt collection.

I saw your article about statute of limitations defenses where you stated it was OK to file a suit even if you knew the statute had passed. My recollection is there are some type of cases you can’t do that. Is that true?

A previous article by this writer suggested that it would not be unethical to file a complaint even though the lawyer knew the statute of limitations had passed because in Pennsylvania, the statute of limitations must be raised as an affirmative defense. Under the chance that the defense, for whatever reason, failed to raise the defense in a new matter, then the case could proceed. Therefore, it was not unethical to file a complaint even though the attorney is well aware the statute of limitations has passed.

Having written that article, there were questions raised as to whether or not one could file a suit under the Fair Debt Collection Practices Act knowing the statute of limitations had passed. Apparently, there was a line of cases that suggested such a suit would be a misleading claim if the statute of limitations had passed at the time of the filing.

Attorney David Grunfeld pointed out the recent case of Midland Funding v. Johnson, ____ US ____, 137 Supreme Court 1407 (2017). The U.S. Supreme Court made the following holding on the Fair Debt Statute: “Like the majority of Court of Appeals that have considered the matter, we conclude that Midland’s filing of a proof of claim that on its face indicates that the limitations period has run does not fall within the scope of the five relevant words of the Fair Debt Collection Practices Act. We believe it’s reasonably clear that Midland’s proof of claim was not ‘false, deceptive or misleading.’ Midland’s proof of claim falls within the Bankruptcy Code’s definition of the term claim. The claim is a right to payment. State law usually determines whether a person has such a right … the relevant state law is the law of Alabama.  And Alabama’s law, like the state law of many states, provides that a creditor has the right to payment of a debt even after the limitation period has expired.”

The case is worth reading and it discusses the issue further in the context of bankruptcy, but appears to allow it to be pleaded even if the statute of limitations period has passed.

Therefore, at least in Pennsylvania and, apparently for the Fair Debt Collection Act, one can raise the statute of limitations even though one knows it is passed. The burden falls on the other party. It is not unethical to do so.

There is no excuse for a professional lawyer to act like a bully at a deposition.

I was at a deposition and the opposing lawyer was very unruly. He would constantly interrupt me, he would feed answers and he was—at times—vulgar. What do I do about this?

Perhaps it’s just nostalgia, but there does seem to be more boorish and unruly behavior by lawyers, particularly in the deposition setting where there is no judge to keep order. There is often personal attacks against the opposing lawyer, sometimes bad or obscene language, sometimes belittling conduct, and sometimes interference with the answers.  Sometimes there are physical threats.  None of this is acceptable for an attorney.  Somewhere, someplace, the idea recently developed that a lawyer has to be tough and mean.  But, that is about as far from the truth as one can get.

Lawyers who act in an unruly or bad fashion at depositions usually don’t know what they’re doing or they’re trying to cover something. It’s just not acceptable conduct. The practice of law is logic and reason and advocacy. It’s done by pointed questions, command of the facts and preparation. It is not done by being the schoolhouse bully. That’s just not acceptable.

The Pennsylvania Supreme Court has adopted Rules of Civility. It was an embarrassment when the court adopted these rules, because the rules are so basic, i.e., be courteous to one another. One would hope that there would be no need to have to say that in the form of rules, but apparently the conduct had gotten to the point that the Supreme Court had no choice but to promulgate such rules. These rules have been around for about 10 to 12 years and haven’t made a difference. Unfortunately, the rules themselves have no teeth or penalties.

But, the Rules of Professional Conduct do prohibit conduct that is improper. For instance, under Rule 3.5(d), a lawyer cannot engage in conduct intended to disrupt a tribunal. A deposition is defined as a tribunal under Comment 5 to Rule 3.5 and also in Rule of Professional Conduct 1.0(m).  Comment 4 to Rule 3.5 says it all: “The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve integrity by patient firmness or no less effectively than by belligerence or theatrics.”

That is not to say there can’t be some advocacy and some posturing. But, that’s the practice of law and, at times, lawyers have to posture a little for their clients.  here is a major difference between posturing and bad behavior.

Philadelphia’s most famous lawyer, John Graver Johnson, who was greatly respected and had a tremendous appellate and trial record, often would go to depositions and say as he started, “I’m going to sharpen my teeth now.” There is nothing wrong with such a statement. It was just a nice way to indicate that there were going to be some pointed and difficult questions to answer.

There should not be screaming or yelling or personal slurs at depositions. If that occurs, then the opposing counsel should make a brief record. If it continues, then opposing counsel should stop the deposition and place a call to a judge to have this bad conduct stopped or resolved.

There is another rule that could come into play and that is Rule 8.4 of the Rules of Professional Conduct. Rule 8.4(d) precludes a lawyer from engaging in conduct that is prejudicial to administration of justice. Disrupting a deposition by unruly or boorish conduct clearly fits that pattern.

There is no excuse for a professional lawyer, particularly a trial lawyer, to act like a bully at a deposition.

If the lawyer is young or inexperienced, perhaps bad conduct can be understood by their frustration since many times it takes a while to understand how to properly question and to work within the adversarial system. Perhaps one of the reasons more unruly and boorish conduct is taking place is because lawyers have lost the art of trying cases. When one speaks to trial judges, many of them point out how the level of advocacy has declined greatly. And that observation is in a world where law schools have moot court and trial advocacy courses and even master’s programs in trial advocacy. All that is well and good, but there is no better way to become a good trial lawyer than to actually try many, many, many cases. The opportunity for more trials is lacking. So few lawyers go into court with any regularity and when they do get there, their skills are just not up to snuff and frustration sometimes sets in.

Sometimes very experienced lawyers will try to take advantage of and act badly to overwhelm or frighten off a younger, inexperienced lawyer. This conduct is just totally unacceptable. Further, if an experienced lawyer is acting that way, it may be a symptom that they’re over the hill. Remember, a good reputation in this business is only as good as the next trial or hearing or deposition. All lawyers have an obligation to set a good example and role model for a younger attorney.

Years and years and years ago there used to be sort of unwritten rule that the judges and lawyers while a jury was deliberating would retire to a close by bar and have a drink or two waiting for the verdict. Of course, this was not in every county, but it happened quite a bit among experienced judges and lawyers in Philadelphia, Chester County, and presumably other counties. One didn’t have to do that, but there was sort of an unwritten mandatory rule, because if you didn’t go, the judge would often wonder why. It’s a wonderful way of getting to know everyone and realizing that trial advocacy should not make opponents enemies. Many good friendships arose out of that.

Perhaps those days are long gone and no one is going to encourage lawyers to go to bars awaiting verdicts anymore. But, the concept of advocates respecting each other and at times helping each other is really what makes a professional. The bottom line is law is and has to be a profession first and a business second. When it gets away from that model, then the cherished independence of lawyers and law’s prestigious position in the democratic society is going to erode.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.