“I am not aware of any rule or law which requires civility between counsel” (Thomas B. Decea, Esq.).
So begins the decision of Justice Carol Robinson Edmead in New York Supreme Court, bench-slapping but good local lawyer Thomas Decea who, during the course of a deposition, referred to opposing counsel Michelle Rice as “dear,” “girl,” and “hon,” among other transgressions. And when asked what he meant by “hon,” he oh so wittily replied, “As in Atilla.” Ho, ho, ho. He also thought it would be cute to ask her if she was married. What a card. And when the motion came in to have a referee appointed for future depositions, he actually claimed to be ignorant of the rules requiring civility.
Decea’s response was that Rice was asking leading questions.He then used that as an excuse both for his verbal assault on Rice as well as for directing his witness not to answer her questions. Compounding Deceas’s incivility was the fact that he kept interjecting himself to help coach the witness with answers. An attorney defending a deposition in New York, however, has no authority to stop a question because it is leading and may not use speaking objections to coach his witness how to answer, except with some limited exceptions where the question is palpably improper (When did you stop beating your wife?). So in addition to be abusive, he was also dead wrong on the law.
Anyway, attorney Decea is ignorant no longer. The good judge has set him straight, in an opinion that is now available online, telling him that, “Offensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable.” Justice Edmead went on to tell him that and an attorney’s “conduct … that projects offensive and invidious discriminatory distinctions … based on race … [or] gender … is especially offensive.” Much of the colloquy is quoted in that link.
She appointed a referee for future depositions, but did not sanction him (the motion was only for the referee, though she could have sanctioned him on the court’s own motion). Personally, I think the judge was being too kind to him, though the sanction of the opinion being available online for future clients to read may well be more profound.
Ironically, the case deals with attorney malpractice.
[After publishing, I noticed that Nicole Black also covers this decision at Sui Generis: Lawyers behaving badly]
I applaud the Judge for a great decision and I agree wholeheartely that Attorney Decea got off lightly. I practice in Upstate N.Y. where I am pleased to say that such conduct is a very rare exception but the problem of “speaking objections” persists despite the new rules. It will take a while for a body of decisions on these new rules to emerge but it is my hope that fellow plaintiffs’ counsel will make the necessary motions if you encounter this conduct. Making the motion is a pain in the neck but it’s the only way to effectively deal with obstructive and unethical defense counsel conduct….
Thanks for a great post.
I would have said “Hon” was short for “Honorable”…..