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March 19, 2019 Articles

Attorney Professionalism: Ever More Important in the Fake News Era

Illinois disciplinary complaint rejects lawyer’s allegation that “[t]he standards have changed.”

By Margaret Monihan Toohey

Three months into 2019, national discourse remains divisive. Politicians on both sides of the aisle regularly lob personal insults against political foes. Friends and relatives spar in the comments section on Facebook. Do these shifting standards of private and public decorum change the boundary lines for unprofessional conduct by attorneys? A recent disciplinary complaint suggests otherwise.

In December 2018, a Chicago-area lawyer found himself in hot water after the Illinois Attorney Registration and Disciplinary Commission filed a disciplinary complaint alleging misconduct, primarily in the form of boorish taunts and gendered name-calling. The allegations chiefly concern the lawyer’s behavior while defending a November 2016 deposition. 

The deposition transcript reflects the respondent’s penchant for petulant behavior, particularly toward opposing counsel. When opposing counsel inquires whether the deponent has ever received any invoices or bills or itemized statements, the offending lawyer interjects, “Don’t waste your breath.” He subsequently instructs the deponent not to answer the question. When opposing counsel moves to certify the question, the offending lawyer retorts, “Okay. Then certify your own stupidity at this point.” And when the offending lawyer’s adversary (a woman) notes a separate question for certification, he threatens sanctions and hurls a gendered slur: “I’m going to get sanctions against your firm like you wouldn’t believe, b***h.”

The nastiness continues. When opposing counsel responds to one of the offending lawyer’s taunts with the measured statement that “I’m not going to sit here and take insults from you,” he replies that he is allowed to say whatever he wants because, “At this point in time, a man who insults on a daily basis everybody he does business with has now been elected President of the United States. The standards have changed. I’ll say what I want.”

Not so, at least according to the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission. The commission construed the offending lawyer’s “obstructionist” deposition tactics as “conduct intended to disrupt a tribunal (in violation of Illinois Rule of Professional Conduct 3.5(d)), “means that have no substantial purpose other than to embarrass, delay, or burden a third person (see Rule 4.4(a)), and “conduct that is prejudicial to the administration of justice” (see Rule 8.4(d)). Consistent with the third comment to Rule 8.4, it is likely the respondent also “in the course of representing a client, knowingly manifest[ed] by words or conduct, bias or prejudice based upon . . . sex[.]”

The respondent’s misbehavior (and ensuing disciplinary problems) do not end with the deposition. When opposing counsel files a motion to compel, the offending lawyer goes on the attack—against the judge. At an initial hearing on opposing counsel’s motion to compel certain deposition testimony, the judge admonishes the respondent on the record. Rather than take this judicial slap on the wrist and move on, the offending lawyer tries to defend his deposition conduct as an aberrational reaction to opposing counsel’s “bullying and improper questions.” In the respondent’s written response to the motion to compel, he alleges that he “would have apologized” at the initial hearing, but claims the court “refused” to let him speak. The respondent’s retelling relies heavily on alternative and inflammatory facts. According to the respondent, the judge “flew into a rage of his own.” Characterizing the prior admonishment as a “robe rage incident,” the respondent suggests that his client will “suffer because of the anger [the judge] holds against his counsel,” and opines on how the court should have acted: “In this case, the judge saw an angry situation develop in a deposition and reacted in anger. It is always preferable if a judge is able to put out fires rather than pour oil on the flames . . . such temper as was displayed by the Court calls into question the impartiality of the tribunal.”

The disciplinary commission disagreed, finding that the respondent’s characterization of the judge’s conduct as a “robe rage incident,” coupled with his various statements questioning the judge’s impartiality, violated Rule 8.2(a) (“making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge”) and 8.4(d) (engaging in “conduct that is prejudicial to the administration of justice”).

Depositions are inherently adversarial, and seasoned litigators will likely recall numerous instances in which a cramped conference room and hours of inquisition resulted in terse dialogue between counsel. A lawyer can—and should—object to inappropriate questions and even (but only where truly necessary) threaten to call the court or move for sanctions. A lawyer cannot, however, comport himself or herself in a way that violates any reasonable conception of professionalism. While the final verdict is still out, the respondent’s adversarial excesses, both at the deposition and in his written submission, have placed him at the mercy of Illinois’ attorney-discipline process. His conduct would likely also subject him to discipline in any other jurisdiction in the union. At times, the line between zealous advocacy and petulant or boorish behavior may be blurry. Here, the lines seem clear. Behavior that “serve[s] no purpose other than to embarrass, intimidate, and burden” an adversary is unequivocally inappropriate. Falsely impugning a judge’s integrity is deplorable. How the president—not a lawyer—comports himself seems a woefully inadequate affirmative defense.

Indeed, now more than ever, members of the bar must collectively defend and uphold unassailable standards for attorney professionalism. From Michael Cohen to Michael Avenatti, the American public is bombarded daily with stories that serve to undermine public confidence in the personal and professional integrity of those they call their lawyers. Calling opposing counsel a “b***h” (or, alternatively, insulting your client’s manhood and challenging him to a duel) obviously debases the profession. Suggesting that lawyers are above the law and “don’t [get sent] to jail because we run the country” likewise erodes faith in our profession’s allegiance to the rule of law. But so does mischaracterizing facts, such as by describing a well-deserved judicial rebuke as “robe rage.” In a recent Ohio Supreme Court disciplinary case indefinitely suspending a lawyer who alleged alternative facts following a videotaped road-rage incident, “The integrity of our profession can be maintained only if the conduct of the individual attorney is above reproach.”

Above reproach is a high standard, but quite simple to meet. Play fair. Tell the truth. In the words of John F. Kennedy, “civility is not a sign of weakness, and sincerity is always subject to proof[.]”

Margaret Monihan Toohey is an attorney at Jones Day in Cleveland, Ohio.

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