Question
Another lawyer has made very derogatory comments about me before the court. Is that a violation of the Rules of Professional Conduct?
Answer
Many lawyers have expressed that rude conduct by other lawyers is a prime example of the lack of professionalism today. The impolite behavior occurs in court but more often in discovery proceedings, where a lawyer might try to use bullying tactics to avoid the potential negative consequences of the discovery. Unfortunately, there is no single rule that addresses this type of unprofessional behavior.
A recent decision from the Florida Supreme Court described a situation exemplifying this type of behavior. The court suspended an attorney’s license for two years for rude conduct and indicated that the case should be studied as “a glaring example of unprofessional behavior.” The court issued the two-year suspension even though the referee recommended a three-month suspension because of the mitigating factor of the attorney seeking to address his behavior through mental health counseling.
The attorney engaged in significant inappropriate behaviors when dealing in a litigation matter with opposing counsel, who was 71 years old and suffering from Parkinson’s disease and kidney cancer at the time. The court found that the attorney acted inappropriately by 1) sending emails to opposing counsel stating that opposing counsel was lying and disingenuous and that his motions were “laughable and scurrilous;” 2) sending emails indicating that he would seek sanctions against opposing counsel and advising him to notify his malpractice insurance carrier; and 3) approaching opposing counsel in the courthouse hallway indicating he had conversations with other lawyers who stated that opposing counsel was “underhanded and a scumbag.”
The court found that the lawyer violated several rules of professional conduct, including the rule that prohibits conduct intended to disrupt a tribunal and the rule that states a lawyer should not “knowingly, or through callous indifference, disparage, humiliate or discriminate against … other lawyers on any basis.”
Need Ethics Advice?
As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.
Ethics Hotline. To informally discuss an ethics question, contact the State Bar ethics counsel, Timothy Pierce or assistant ethics counsel, Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.
The court concluded its opinion with this advice for Florida lawyers, which is relevant to Wisconsin lawyers as well: “Competent, zealous representation is required when working on a case for a client. There are proper types of behavior and methods to utilize when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposefully offensive toward opposing counsel….” Florida Bar v. Norkin, 2013 BL 302342, Fla., No. SC11-1356 (Oct. 31, 2013).
Wisconsin does not have the same rules that are cited in the Florida decision but a lawyer could be accused of “misconduct” under SCR 20:8.4 for violating the attorney’s oath, which provides that the lawyer may not engage in the type of behavior described in this decision.
