Ethics Month Scenario 2

How Zealous is too Zealous?

Joanne Fraser is an associate at a medium-sized law firm practicing general commercial litigation for 5 years who has a reputation for being a “bull dog” attorney. Joanne was representing the plaintiff in a breach of contract case and attempting to take the deposition of a third party, a former employee of the defendant. Joanne and her opposing counsel, Frieda Markenson, had a contentious time scheduling the time and place of the deposition, but it was eventually scheduled at Joanne’s office.

When she arrived, Joanne found Frieda sitting in the middle seat of the conference table, which Joanne considers to be “her seat” as it is a more dominant position.  Joanne insisted that Frieda move to another seat; Frieda said she was already there and would not move. Joanne insisted. This went back and forth for a while. Joanne did not want to back down in front of the witness or in front of other people in the room, feeling it would undermine her in front of the witness. Eventually, Joanne resorted to physically trying to move Frieda; they wound up in a shoving match and, after being called several distasteful names, Joanne threw a punch.  The court reporter walked in and had to scramble to avoid having his equipment knocked over. Eventually another attorney stepped in to break up the fight, and ended up reporting Joanne to the bar. This was not the first time Joanne had been reported.

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Comments:

The Ethics Gurus—Francis G.X. Pileggi, Esq. of Wilmington, DE and John P. Ratnaswamy, Esq. of Chicago, IL

Regarding Joanne’s behavior, there are or may be criminal law, tort law, ethics, civility, and possibly mental health issues here, but, defer to experts in criminal law, personal injury tort law or mental health. Zealous representation principles do not call for, nor authorize, assault. Joanne’s use of physical force to remove Frieda was unacceptable behavior and should be reported to whomever oversees Joanne in her firm, and any other supervisory body that would convince her to make certain that her behavior is not repeated.  The mentoring needed is to convince her that her behavior cannot be tolerated. Frieda’s behavior did not cause any particular concern; as a general matter, it is hard to blame someone for refusing to be bullied. 

Ben J. Weaver, Esq., St. Augustine American Inn of Court, St. Augustine, FL

If Joanne has been practicing general commercial litigation for 5 years and conducts herself as described she should know better even if she has had no mentoring. A reputation for being a “bull dog attorney” is not a compliment. If sitting at the “middle seat of the conference table” was so important to Joanne she should have arrived first so as to sit at the seat of her choice (subject to the needs of the court reporter). Why wasn’t Joanne satisfied with sitting at the other “middle seat”? “A more dominant position”?  Nonsense. When the transcript of the deposition is prepared it will not show who sat where, only who attended. The fact that Joanne did not want to back down in front of the witness or in front of other people in the room establishes that practicing litigation of any type is not her bag. She should consider other practice areas. Physically trying to move Frieda resulting in a shoving match and throwing a punch should result in Joanne’s suspension.  Frieda should not cover herself in glory. There is no excuse for two lawyers engaging in a shoving match in a deposition or otherwise. Mentoring Joanne at a minimum would require her to act only as second chair to a professional lawyer in every court appearance and other contact with opposing counsel and witnesses until she demonstrated conclusively that she will act professionally.

Mary Beth L. Sweeney, Esq., Massachusetts Family and Probate American Inn of Court, Boston, MA

This scenario goes so far afield of “zealous representation” and constitutes criminal behavior (assault & battery) as well as grossly unprofessional conduct. I am surprised she was only “sanctioned” by this.
Joanne needs to attend an anger management program and perhaps a mediation or conciliation program to learn how to deal with conflict in a professional way. Frieda could have simply moved her seat in the grand scheme of things “holding her ground” was meaningless and merely incited Joanne. Getting into a tussle with Joanne made her conduct equally bad. She also could have left the deposition and suggest it be rescheduled as a video deposition, conducted at the Courthouse to prevent continued “bad behavior.” Joanne needs some mental health help in addition to the programs previously recommended.

Judge William H. Burgess III, Barney Masterson American Inn of Court, Clearwater, FL

One of the biggest pitfalls that comes with “zealous representation” is that it can radically alter a person’s perceptions of what is or is not appropriate conduct for the time, manner, and place.  Add a dash of narcissism and expanded sense of entitlement and you have a recipe for career-ending disaster.  Joanne needs to consult an attorney to handle the grievance, and a psychologist to learn how to deal with her obviously serious mental issues.  Frieda should not have shoved back or called Joanne distasteful names, but instead should have tried to defuse the situation in a professional, reasoned manner.  I would advise Joanne that she should expect a bar sanction, that she should not wait for the bar to act before she takes action, that if she wants to continue practicing law she is going to have to deal with her problems head-on, and that she needs to engage in extensive introspection to determine what it is that has brought her to this place in her life.

Donald E. Campbell, J.D., Ph.D., Associate Professor of Law, Mississippi College School of Law, Jackson, MS

The ethical pitfalls in this case are serious.  Rule 8.4(b) provides it is unethical to engage in a criminal act.  Here, there appears to be a battery.  No conviction is required for the lawyer to be sanctioned for the conduct. 

This type of conduct undermines the entire purpose of the criminal justice system, which is to resolve disputes without violence.  In that way, this could also be a violation of Rule 8.4(e) (conduct that is prejudicial to the administration of justice). The underlying purpose of Joanne wanting the “power” seat is also inappropriate—the only purpose of having that seat is to try to intimidate the witness, which is not a proper motivation.  Rule 4.4(a) provides:  “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….” The law firm should put in place a process for informing associates about the appropriate methods of engaging in discovery—and perhaps some anger management for both of these attorneys!

Judge Barbara M.G. Lynn, Patrick E. Higginbotham  and Honorable Barbara M.G. Lynn American Inns of Court, and Michael P. Lynn, Esq., Patrick E. Higginbotham American Inn of Court, Dallas, TX

Zealous representation does not mean a lawyer should be a bully or a jerk. The best way to impress a client is to do a good job being a lawyer - not confronting the opponent in a physically threatening manner. Joanne should seek to prevail by "besting" the witness (in a way that might not be obvious to the witness), not by beating up the opponent. Joanne should be on probation, not permitted to be first chair, and required to shadow a highly ethical, civilly and professional accomplished lawyer. Frieda could move, to diffuse the situation, and she should not use "inappropriate" language, but should not be viewed as "culpable."

Inn member in Pittsburgh, PA:

Assuming the punch landed, Joanne committed an assault, which is a crime for which she can be disciplined. To help improve her performance, Joanne should attend a CLE program on professionalism or shadow a good attorney. Frieda played a role, as well, by escalating the situation through her unwillingness to give up the chair and, more importantly, name calling. Frieda should have walked away from the situation or acted to diffuse it. Representation that results in conflict is unprofessional and does not further the client's goals.