July 30, 2019 ADVENTURES IN THE LAW

Tempted to Tell Someone to Drop Dead?

By Norman G. Tabler Jr.

Have you ever, in the heat of advocating for a client, been tempted to tell your opponent to drop dead? Would it be safe to yield to the temptation?

A recent New York appellate ruling says that it may not be safe, depending on the context and the words you use. The court suspended New York City real estate attorney Alex Bailey from the practice of law for four months and ordered him to undergo counseling for up to twelve months. If tough talk can get you in that much trouble in New York City, think what could happen in your home town.

Exactly what did Alex say and do? According to the ruling, Alex admitted that he not only told non-lawyer James Dawson to drop dead but went on to tell him how to do it: By suicide. Alex’s precise advice to James was that he “should commit suicide” because he was “one of those people in the world that really should just kill themselves because [they are] worthless.”

What had James done to deserve death? Why, he had posted an item on the internet saying that one of Alex’s clients overcharged his tenants. Strong words, indeed! Alex apparently felt that anyone who criticized one of his clients no longer deserved to live.

Alex provided James with some incentives for following his advice. He sent a text message informing James that (a) he was filing a defamation suit against him for millions of dollars and (b) he had obtained a copy of a complaint filed against James by an ex-girlfriend and was prepared to use it to James' disadvantage.

To further incentivize the suggested suicide, Alex telephoned James to tell him that he would soon be bankrupt. He also informed James that he had an employee who “used to run the district attorney’s office” and who would soon be launching an investigation of James that would lead to his arrest. In conclusion, Alex advised James, “Now you’re my bitch…you’re gonna be paying for this heavily for the rest of your life.”

How do we know what Alex said? Because James recorded the conversation. And the recording found its way to the Attorney Grievance Committee for the New York Bar.

The timing of the complaint was particularly bad for Alex because the Committee had received another complaint against him for his conduct during an arbitration. Alex wasn’t handling the arbitration, but that didn’t prevent him from barging into the hearing room, taking photos with his smartphone, and proclaiming, “This will be in the newspaper when I put this in there after we kick your asses. You should be ashamed of yourselves for kicking people out of a building and you have to live with yourself.” (Note that while Alex had directed James to kill himself, he indicated that this opponent must live with himself.)

The Grievance Committee commenced a proceeding to determine whether Alex had violated the New York Rules of Professional Conduct for (a) “undignified or discourteous conduct before a tribunal,” (b) “conduct intended to disrupt a tribunal,” (c) “conduct prejudicial to the administration of justice,” (d) “threatening criminal charges solely to obtain an advantage in a civil matter,” and (e) “conduct that adversely reflects on counsel’s fitness as a lawyer.”

Alex admitted all the charges but insisted that his conduct was not intentional. How could his words and deeds not be intentional? Metaphorically throwing his own child under the bus, Alex explained that he was experiencing “difficulties as a parent of a newborn.”

The Appellate Division of the Supreme Court appointed a referee to conduct a hearing on sanctions. The referee recommended a three-month suspension, noting aggravating factors: Alex had previously been admonished for excessively aggressive behavior, failing to conduct himself with propriety, and violating “one or another” professional rule.

The court accepted all the referee’s findings and conclusions but rejected the recommended three-month suspension, instead imposing a four-month suspension and requiring counseling for up to one year.

So, the next time you feel like telling someone to drop dead, remember what happened to Alex. And, oh yes, think twice before asserting the my-baby-made-me-do-it defense.

The case is In Re Adam L. Bailey, App. Div., 1st Dept., N.Y. Sup. Ct.

Author

Norman  G. Tabler, Jr., is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyer and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health Law