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March 31, 2015 Articles

Ethical Fee Collection from a Former Client: Bringing Out the Big Guns

There are risks in litigating a fee dispute or using a collection agency, while fee arbitration offers a somewhat underused, private alternative.

By Kathryn Nadro

A recent spate of opinions from multiple jurisdictions has underscored the growing importance disciplinary boards appear to place on professionalism and civility among members of the bar. An increasing number of attorneys are facing disciplinary charges for a failure to adhere to professionalism standards, which for many years may have been considered more aspirational than mandatory. While prescient authors (see, e.g., Gregory Hanthorn, “When Breaches of Professionalism Become Sanctionable,” Ethics & Professionalism, Feb. 5, 2014) have noted this trend over the past several years, reports of breaches of professional conduct appear to grow daily and serve as a warning to attorneys who appear to confuse incivility and outright rudeness with zealous advocacy in service to their clients.

Despite the multiple, specific rules that deal with ethical breaches, the ABA Model Rules of Professional Conduct do not directly address an attorney’s obligation of professionalism. However, an attorney’s duty of professionalism is implied in multiple places within the Model Rules. Model Rule 8.4(d) is invoked most frequently when discussing an attorney’s duty of civility and professionalism, in its mandate to avoid “conduct prejudicial to the administration of justice.” Other Model Rules that touch on civility requirements include the prohibition against attorneys making false or misleading statements about judges and candidates for public office (Model Rule 8.2(a)) and the obligation to avoid litigation tactics that harass or cause undue burden toward third parties (Model Rule 4.4(a)). Notably, even the preamble to the ABA Model Rules simultaneously requires attorneys to practice “zealous advocacy” and to maintain a "professional, courteous, and civil attitude toward all persons involved in the legal system.”

A recent New York divorce case, Zappin v. Comfort (2015 N.Y. Slip Op. 51339(u)), presents an extreme example of an attorney’s lapse of professionalism and consequent sanctioning by the Court. Zappin, the plaintiff husband in an acrimonious divorce and custody case, was cautioned by multiple judges to adhere to the Rules of Professional Conduct in his pro se appearances during the litigation. Throughout the course of the case, Zappin accused the court of “lies,” threatened to file judicial complaints for denials of motions, made “contemptuous remarks” directed toward a judge in her own courtroom, and made other “frankly outrageous” statements toward the court in front of attorneys, litigants, and court staff. In ultimately sanctioning Zappin for engaging in what the court called a “maelstrom of misconduct” directed toward the various judges overseeing the case, the court-appointed attorney for Zappin’s minor child, Comfort herself, Comfort’s counsel, and third parties, the court characterized Zappin’s actions as “tactics designed to extort, bully, and intimidate.” The court ordered Zappin to pay a $10,000 fine, with half to be paid to the New York Lawyers Fund for Client Protection, to penalize Zappin for conduct that “wasted judicial resources and otherwise adversely impacted the administration of justice” under 22 N.Y. Comp. Codes R. & Regs. subpt.130-1.3.

Other recent high-profile attorney disciplinary cases feature both profanity-laden tirades toward clients and their families and possible assaults on sitting judges. In a recent Illinois case, In re Moore, attorney Michael Moore was sanctioned for leaving angry, profane voice mails on his client’s father’s answering machine, demanding additional payments, and using racial epithets. Among other ethical guidelines, Moore was found to have violated Illinois Rule of Professional Conduct 4.4(a), which prohibits “using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person,” and Rule 8.4(d), which prohibits conduct detrimental to the administration of justice for failing to cooperate with the disciplinary inquiry.

In New Mexico, the case of In Re Dixon also made recent headlines and features an attorney sanctioned for allegedly threatening a judge. The respondent, Dixon, was driving his car down a public street when Judge Teddy Hartley was crossing the street. Dixon allegedly accelerated his vehicle and came close to hitting Judge Hartley, who jumped aside just in time. This attorney, remarkably, was a member of the very disciplinary board that publicly censured him. The New Mexico Disciplinary Board stated that the “conduct at issue in this disciplinary matter strikes at the very core of our legal system’s reliance on a professional, respectful relationship between the bench and bar to ensure the effective administration of justice.” The board also stated:

Mr. Dixon’s misconduct, while reflecting most poorly on himself, also erodes the foundation of our legal system and undermines its reputation in the eyes of the public. Without an unwavering public demonstration of trust and respect between the members of the bench and the bar, we cannot expect the public to trust and respect us. Seen in that light, there can be no doubt that Mr. Dixon’s wrongful misconduct was prejudicial to the administration of justice in New Mexico. See Rule 16-804(D) NMRA.

Dixon was removed from the disciplinary board and censured for harming the reputation of the profession and for failing to live up to the oath of admission he took as an attorney to both “maintain the respect due to courts of justice and judicial officers” under Rule 15-304 NMRA and to “conform his conduct to the Rules of Professional Conduct.”

While the sanctions imposed in the Zappin case and the two others mentioned here might be explained away as outliers due to the unquestionably extreme conduct engaged in by these three attorneys, there has been some movement in other states to restore civility to the profession through other means. Certain states have imposed professionalism requirements as part of an entering attorney’s oath (South Carolina and Florida) or have promulgated voluntary professionalism rules (District of Columbia). States are increasingly sanctioning attorneys for falling short of their duties to act with decorum and civility. Florida has been especially active in this area, with the leading case of Florida Bar v. J.A. Norkin, No. SC11-1356 (Fla. Oct. 31, 2013).

The ABA House of Delegates has also joined in this movement by adopting a resolution that “affirms the principle of civility as a foundation for democracy and the rule of law” and “urges lawyers to set a high standard for civil discourse as an example for others.” (ABA House of Delegates Resolution of August 8–9, 2011). The ABA’s resolution included a call to attorneys to promote civil discourse in their day-to-day interactions with clients and other attorneys, as well as to help raise the level of discourse in a broader context in the affairs of government and the public generally. Both state disciplinary boards and courts seem more willing to impose sanctions on attorneys who cause harm to the profession’s reputation with their unprofessional behavior. 

The conduct punished in Zappin, Moore, and Dixon is clearly unacceptable in a profession that deserves that name, and few, if any, attorneys would argue that these sanctions were wrongly imposed. However, members of the legal profession should take note that judges and disciplinary boards seem more willing to impose discipline or sanctions for breaches of professionalism in addition to the traditional oversight of ethical breaches. The line between zealous representation and unprofessionalism will not always be as transparent as not attempting to run down a judge with a car, but attorneys would be well advised to remember that courtesy and advocacy can, and should, mutually coexist.

Keywords: litigation, ethics, professionalism, sanctions

Kathryn Nadro is an associate with Sugar, Felsenthal, Grais & Hammer LLP in Chicago, Illinois.

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