In a cautionary tale, a federal district court ordered counsel for both parties to revise and refile briefs that were “riddled with inflammatory language.” The court concluded that the counsels’ conduct “[ran] afoul of the tenets of professionalism” and further ordered the parties to submit briefing on whether the matter should be referred for disciplinary proceedings.
In Wiegand v. Royal Caribbean Cruises, Ltd., the plaintiffs—parents of a child who died while on a cruise ship—sued the cruise company for wrongful death. The plaintiffs moved for partial summary judgment, which included a section entitled, “Royal Caribbean’s Egregious Post-Incident Conduct.” In the brief, the plaintiffs “accuse[d] the defendant of ‘lying to authorities,’ ‘attempting to deceive this Honorable Court,’ and engaging in, ‘corporate misconduct [which] . . . appears to know no bounds.’” The plaintiffs also alleged the defendant’s captain lied to government actors, and that the defendant made “merciless efforts to frame an innocent man, intentionally destroy evidence, and mislead this Honorable Court (and the U.S. Coast Guard and the Puerto Rican authorities).” Additionally, the plaintiffs claimed that the defendant continually changed its story and purposely destroyed evidence.
The defendant struck a similar tone in its briefs. It made statements such as, “[i]t strains credulity that Plaintiffs’ counsel filed this motion out of a genuine belief that meritorious grounds exist to support summary judgment,” and that the plaintiffs’ motion was “a salacious, unfounded and libelous hit piece.”
The U.S. District Court Southern District of Florida entered an order sua sponte “to address what the Court characterizes as unprofessional language.” It noted that the Florida Bar Oath of Admission not only requires attorneys to be civil in written and oral communications, but also to “abstain from all offensive personality and [to] advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause.” The court also observed that the Florida Bar Creed of Professionalism provides that attorneys will abstain from “all rude, disruptive, disrespectful, and abusive behavior and will all times act with dignity, decency, and courtesy.”
Based on those standards, the court concluded that “the conduct displayed by counsel for both Plaintiffs and Defendant runs afoul of the tenets of professionalism set forth by the Florida Bar” and compared the filings to a “fictional novel or a script from a tabloid Jerry Springer television show.” Moreover, because the plaintiff had previously raised arguments relating to destruction of evidence and inconsistent testimony in a motion for sanctions, the court suggested that the purpose of repeating such allegations was “solely for the inflammatory purpose of painting the Defendant in a negative light.” It advised that “[a] professional pleading does not cast aspersions toward attorneys, parties, or witnesses.”
Accordingly, the court struck the offending briefs and ordered them to be refiled “omitting the inappropriate language.” The court also ordered the attorneys who prepared the briefs at issue to submit briefing on whether the matter should be referred to the court’s Committee on Attorney Admissions, Peer Review, and Attorney Grievance.
ABA Litigation Section leaders highlight the frequency of such attorney conduct. “Sadly, the type of language called out by the court is all too common in legal writing. It took these lawyers years to learn to write that way and will take years to unlearn these bad habits, remarks Michael S. LeBoff, Newport Beach, CA, cochair of the Litigation Section’s Professional Liability Litigation Committee. “Calling out these lawyers should be enough; however, if the conduct continues, a referral to the grievance committee may be the appropriate next step,” LeBoff adds. He notes that while this conduct is common, courts typically ignore these types of comments. “Until courts call out this type of writing, I do not believe attorneys will stop injecting personal insults into their legal writing,” predicts LeBoff.
“Part of good business and good client management is setting the tone of litigation. Counsel should know, and should fully inform the client, of the risks that arise from inflammatory or salacious arguments,” offers Tiffany Rowe, Washington, DC, cochair of the Section’s Professional Liability Litigation Committee. “The parties seem to have gotten caught up in the back and forth, trying to hit back harder. I’d advise the client that, when they go low, we go high,” notes Rowe. “An attorney’s reputation is more important than any one client. If the client insists that you put your name on unprofessional an insulting language, it is time to get a new client,” concludes LeBoff.
