Friday, August 21, 2015

ARTICLE: Vexatious Attorneys Should be Put in their Place

Below is a reprinting of my August 11, 2015 article from the Pennsylvania Law Weekly.  It is republished here with permission from the editor/publisher.  All rights reserved.



Legal Profession

Vexatious Attorneys Should Be Put in Their Place

Daniel E. Cummins, The Legal Intelligencer/Pennsylvania Law Weekly

August 11, 2015

Is there anything worse than a regularly rude, obnoxious, vexatious opposing counsel who acts purposefully to make the lives of other attorneys difficult? How about a judge either unwilling or unable to police his or her courtroom by resolutely stepping into the fray and swiftly putting the unnecessarily overzealous attorney into his or her place?

The Rules of Professional Conduct, the Code of Civility and the Pennsylvania Bar Association's Working Rules of Professionalism outline what is expected of the professionals who partake in the profession of the practice of law.

Yet, unless such ethical rules and codes of professionalism are enforced, those few wayward attorneys out there will, with impunity, continue to wreak havoc, bully their way through their careers, and cause unnecessary stress to others.

Overzealous Litigating is Unethical

In his Dec. 16, 2014, column in the Law Weekly, Chester County attorney Samuel Stretton, an analyst of attorney and judicial ethics, addressed the following inquiry: "I am dealing with a lawyer on the other side of litigation who calls himself extremely zealous. There is no issue he does not fight, there is no motion he does not file, and he treats me as if I was a mortal enemy. Is this kind of conduct acceptable and ethical?"

Stretton responded with a resounding and unequivocal, "No, this conduct is not acceptable."

Stretton went on to acknowledge in his article that attorneys are required to zealously represent their clients in a vigorous fashion, but still within certain limits. As examples, Stretton pointed to Rules 3.3 and 3.4 of the Rules of Professional Responsibility, which deal with fairness and candor to opposing counsel and to the court system.

The descent of properly zealous litigation down to just plain ignorance and bullying can possibly be partly blamed upon what young lawyers see on TV shows and movies glorifying smart alecky or downright rude attorneys. On the other hand, remember all the baby sharks that populated your law school class? Those former classmates, believe it or not, are now practicing lawyers with basically the same personality they had in law school.

For some lawyers, being rude and vexatious is innate. And, if allowed to continue unchecked, that poor behavior and unprofessionalism exhibited by some will continue to grow and expand, as the unfortunate natural tendency of such persons is to keep pushing the envelope until they are stopped.

As Stretton emphasized in his article, a "good lawyer doesn't focus on being overzealous or a bulldog." Rather, lawyers who excel in the practice focus on developing their knowledge of the law and advocate on behalf of their clients with the desired end in mind, as opposed to tangentially seeking to make every step of the litigation difficult for the opposition.

Duty of Judges to Police Their Courtroom

While bully attorneys attempt to intimidate and push their way through litigation outside of the courtroom, in the face of authority in the courtroom, they typically become as obsequious and magnanimous as Eddie Haskell from the old "Leave It To Beaver" episodes.

One typical tactic of such attorneys is to wrongfully withhold discovery and, when brought before the court on motion to compel, finally relent and agree to produce the requested, totally appropriate discovery. Such an attorney may even go so far as to make a grand pronouncement to the court that the parties were able to amicably resolve the issue prior to the need for any argument, knowing full well that their position was without merit in the first place and required needless expense, time and travel for the opposing counsel or that attorney's client relative to the court appearance.

In such scenarios, there may be no way for the court to act to curtail such behavior. However, when such issues do go to argument, and the court can sense shenanigans being played by one attorney in discovery or otherwise, opportunities arise for the court to let such counsel know that vexatious conduct in litigation will not be tolerated in that judge's courtroom.

As set forth in the Pennsylvania Trial Advocacy Handbook at Section 6.02, "in our courts, the trial judge is not a mere referee or moderator confined to calling fouls and making rulings when counsel require him to do so. It is his duty to see that the trial is conducted in an orderly fashion and that counsel, the parties and the witnesses conduct themselves properly."

In this regard, the courts of Pennsylvania have held that trial court judges have significant authority to police the proceedings in their own courtrooms as may be required by conduct of counsel, as in Commonwealth v. Sojourner, 408 A.2d 1100 (1978).

Misconduct in the courtroom, even in the form of a lack of professionalism toward the court or opposing counsel, should be treated as a serious matter, and the "onus is on the trial judge to avert or cure it" in order to ensure a fair trial on the merits for all parties, as the court held in Sojourner.

Under Pennsylvania law, any misconduct can and "should be checked immediately by the court on its own motion."

It has also repeatedly been held that the question of whether or not a lawyer's conduct goes beyond the limits of legitimate advocacy is "primarily for the discretion of the trial judge, and an appellate court will not interfere with the exercise of this discretion, unless the record manifests that it was clearly abused," as in Abrams v. Philadelphia Suburban Transportation, 264 A.2d 702, 704 (1970), and Ace American v. Lloyds, 939 A.2d 935 (Pa. Super. 2007).

However, in order to fully keep these wayward bully attorneys in check, it may be necessary not only for the trial court judge to put them in their place in the courtroom but to consider referring the attorney and the matter to the Disciplinary Board. Surely, a referral of a matter of discipline to the board by a judge, as opposed to an attorney, would have more weight. By and large, attorneys are reluctant to report other attorneys for unprofessionalism, believing that a proper remedy to the situation will not be forthcoming, thereby leaving the reporting attorney to have to deal with a now vengeful bully attorney for the rest of his or her career.

If, however, the matter is referred to the board, the issue becomes to what extent the board desires to uphold the applicable rules pertaining to professionalism and professional conduct.

Notably, reading the periodically published notices of discipline put out by the board fails to reveal any regular public reprimands for such conduct pertaining to unprofessionalism and unnecessarily vexatious conduct. If such cases are instead being handled only by way of private reprimand by the board, a question remains as to whether such handling is effective in correcting the aberrant behavior at issue.

Unfortunately, overzealous, rude and obnoxious attorneys will always be around to make things difficult and give the practice of law a bad name. Fortunately, these attorneys are the exception and not the norm. But it sure would be nice to see one of them put in his or her place once in a while. 

Special to the Law Weekly Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.

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