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.
Should Be Put in Their Place
Daniel E. Cummins, The
Legal Intelligencer/Pennsylvania Law Weekly
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?
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.
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
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?"
responded with a resounding and unequivocal, "No, this conduct is not
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.
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.
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.
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
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.
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.
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.
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."
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).
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."
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.
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.
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.
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.
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.