“‘You’re an asshole[]’ is not how an attorney should address her adversary.”
That is the opening line of federal judge James C. Francis IV’s Order in Alexander Interactive v. Adorama, 12-6608, 2014 WL 2968528 (SDNY June 26, 2014). This decision serves as a reminder to attorneys to conduct themselves in a civil manner.
This case arises from a dispute between two companies relating to an agreement to develop a website. In response to an email from Adorama’s counsel (Daniel J. Brown) concerning the apparent deletion of hard drive data, Alexander Interactive’s counsel, Denise Savage, wrote an email containing the following:
You’re an asshole dan. I have everything taped. And yes, under ny law and the rules of professional conduct, it’s allowed. If you think you’re going to sully my clients with your fictions, you’re a fool. If you try any shit with the court, I welcome it. We have provided all requested data, all requested backups and have provided it in an orderly and accessible manner, unlike your clients.
Don’t fuck me. I’m done with your unethical behavior. Any motions by you, if you’re trying to build a case for some unmeritorious motion to deflect from your clients’ unethical behavior, will include my recordings from today.
Please govern yourself accordingly.
In what amounts to the professional version of “telling”, Mr. Brown brought the email to the court’s attention via letter. In her response, Savage claimed that she was “tired and angry” when she wrote it, but maintained that Mr. Brown engaged in “inappropriate and intimidating behavior duing meet and confer sessions and depositions by shouting at her and telling her to ‘shut up.’”
The court proceeded to address (1) Savage’s “intemperate language” and (2) her alleged surreptitious recording.
Attorney Profanity
As to Savage’s profanity, the court explained:
Rule 8.4(h) of the New York Rules of Professional Conduct … provides that “[a] lawyer or law firm shall not engage in any [ ] conduct that adversely reflects on the lawyer’s fitness as a lawyer.” Similarly, Rule 8.4(d) … proscribes “conduct that is prejudicial to the administration of justice.” It is well-established that the use of vulgar, insulting, and offensive language toward an adversary in litigation constitutes a violation of these rules. (Emphasis added.)
The court considered the factors both for and against Ms. Savage. Weighing in her favor were the facts that she recognized the impropriety of her conduct and apologized and that she was “overwrought” when she sent the offending email at 12:22 in the morning. Weighing against her was her attempt to “deflect blame” to her adversary.
In sum, the court cautioned Ms. Savage “that incivility among counsel will not be tolerated and that any similar misconduct in the future will warrant the imposition of sanctions, potentially including her being relieved from representing any party in this action.”
Undisclosed Recording
The court next turned to the issue of the undisclosed tape recording, noting that if “Ms. Savage made a tape recording of her conversation with the defendants’ expert without disclosing that she was doing so, she would likely have violated Rule 8.4(c) of the New York Rules of Professional Conduct, which prohibits ‘conduct involving dishonesty, fraud, deceit or misrepresentation.’”
While the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York found (in Formal Opinion 2003-02) “that not all undisclosed recording by an attorney should be considered unethical”, it maintains “that undisclosed taping smacks of trickery and is improper as a routine practice.” That said, the Committee acknowledges that “if undisclosed taping is done under circumstances that can be said to further a generally accepted societal good, it will not be regarded as unethical.”
Ms. Savage’s alleged undisclosed recording did not fit within this safe harbor:
She suggests that “the proposed taping of any conversation to compel an honest recitation of the Plaintiffs’ conduct in this case by the Defendants’ counsel is certainly a generally accepted societal good.” By this interpretation, the exception would swallow the rule, as counsel could always represent that their intent in making a surreptitious recording was to keep the adversary honest. The Committee Report provides much narrower examples of where undisclosed taping might be acceptable, including the investigation of ongoing criminal activity or significant misconduct or conversations with persons who had previously made threats against the attorney or a client.
The court found it unnecessary to “determine the precise contours of the proscription against surreptitious recording”, since Ms. Savage represented to the court, under penalty of perjury, that she did not in fact make such a recording.
It noted, however, that Ms. Savage’s statement that she merely “pretended that she had recorded the conversation in order ‘to compel honest conduct by Mr. Brown, his clients and their experts'” was “in itself an acknowledgment of having engaged in deceit and misrepresentation”. The court concluded by admonishing Ms. Savage “to abide by her duty to deal with opposing counsel with candor.”