Angry Birds Will Not Violate Bar Rules; Abusive Tactics Will
By Sean T. Carnathan, Litigation News Associate Editor – August 10, 2012
Playing Angry Birds and drawing crude pictures during a deposition may not get you disqualified, but ex parte contact with witnesses and abuse of your opposing counsel will. In a recent opinion, Judge Cecilia M. Altonaga of the U.S District Court for the Southern District of Florida disqualified an entire law firm based on the antics of one its partners. Bedoya v. Aventura Limousine & Transportation Service, Inc.
According to the court’s opinion, plaintiff’s counsel engaged in a variety of troubling conduct. Among the bar rule violations that resulted in his firm’s disqualification was ex partecontact with an officer of the defendant corporation in which plaintiff’s counsel denigrated the company’s lawyer.
The officer testified that plaintiff’s counsel told him that the company “can afford better representation.” Plaintiff’s counsel’s description of the exchange was perhaps worse: “Dude, you guys are a big company. You need to have outside counsel who specializes in this stuff.” In an email directly to the defense attorney, plaintiff’s counsel told him “[w]e are not interested, nor are our clients, in settlement discussions with you as long as you are the lawyer on the other side. You are causing your client a great disservice.”
The court held that the ex parte contact violated Florida Bar Rule 4-4.2, prohibiting contact with a represented party, and implicated Rule 4-4.4, which bars conduct intended to embarrass or burden the other side. The court was particularly disturbed by how the conduct of plaintiff’s counsel affected the relationship between the defendant and its counsel. The court also concluded that the plaintiff had not acted in good faith in settlement talks.
In another violation, plaintiff’s counsel duped a former manager and current worker for the defendant into coming to his office by telling him he had to appear for his deposition. On arrival, the witness discovered no deposition was being held. Instead, plaintiff’s counsel asked him to sign an affidavit, which he ultimately did. The witness held a position at the company such that his conduct could be used to impute liability to the defendant. As a result, the court held that this contact also violated Florida Bar Rule 4-4.2.
Plaintiff’s counsel also abused the settlement process by persuading the defendant to disclose certain facts pertinent to the plaintiff’s claims in one case, which he then allegedly used to file another lawsuit against the defendant. Plaintiff’s counsel asserted that the information was all “within the public purview.” The court examined whether this tactic violated Florida Bar Rule 4-4.4, and concluded that although counsel had “created a situation ripe for a Bar rule violation,” absent evidence of actual improper use of confidential information, no violation had yet occurred.
Among the other antics of plaintiff’s counsel that did not violate any bar rules but plainly did not amuse the court were:
- attending depositions in a t-shirt and shorts
- noticing depositions to take place at Dunkin’ Donuts
- playing Angry Birds during depositions
- drawing pictures of male genitalia and showing them to his co-counsel, describing defense counsel
Any Lessons Here?
The lawyer’s antics plainly irritated the court. But ultimately, the court grounded the disqualification in serious violations of the Florida bar rules regarding contact with represented parties and their employees.
“The Bedoya court had a strong negative reaction to bullying or chest-thumping comments by one of the lawyers,” says Gregory R. Hanthorn, Atlanta, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. “Extrapolating a bit from the order itself, this confirms that talking smack to another lawyer about how you will never negotiate or settle with that lawyer because you despise that lawyer is not only unprofessional, but it can result in an ethical violation,” he says. Hanthorn points specifically to the plaintiff’s lawyer’s settlement email that personally insults defendants’ counsel and adds that ”the fact that the same email referenced a discussion between the writing lawyer and the other side's client only added fuel to the fire.”
“This case confirms that courts will take seriously the obligation of lawyers to communicate with the other side through counsel and not directly,” says Hanthorn. “The Bedoya Order also confirms that this remains true in what some view as the more relaxed context of arbitration proceedings,” notes Hanthorn.
Keywords: ex parte contact, Rule 4-4.4, lawyer misconduct, ethics, disqualification
1. So, the attorneys falsely tell a witness that he has to appear for a deposition then get him to sign affidavit (presumably to avoid having to have his deposition taken). The question is why this is just a disqualification issue and not a bar discipline matter? Maybe that's next.