Question

I’ve experienced more instances in which a lawyer has engaged in disruptive behavior as a tactic in litigation. Are lawyers being disciplined for such behavior?

Answer

There have been a number of instances in the recent past when lawyers have been disciplined for their inappropriate behavior in a litigation context. The resolution of every situation depends on the conduct involved and the exact circumstances; however, lawyers must be careful regarding the behaviors that they exhibit when dealing with other lawyers and parties in a litigation context.

Recently, a lawyer from Virginia was reprimanded for engaging in sarcastic behavior during a deposition. The lawyer admitted to referring to the case against his client as “crap” and calling the opposing lawyer’s position “nonsense” and “bologna.”

In Wisconsin, chapter 62 of the Wisconsin Supreme Court Rules (Standards of Courtesy and Decorum for the Courts of Wisconsin) addresses behavior in the courtroom and provides a means for judges to address inappropriate or uncivil conduct of lawyers practicing before the court. SCR 62.02 – Standards provides that attorneys must, at all times, do the following:

• Maintain a cordial and respectful demeanor;

• Be guided by a fundamental sense of integrity and fair play in all professional activities;

• Be civil in dealings with one another and with the public;

• Conduct all court and court-related proceedings, whether written or oral, including discovery proceedings, with civility and respect for each of the participants;

• Abstain from making disparaging, demeaning, or sarcastic remarks or comments about one another; and

• Abstain from any conduct that might be characterized as uncivil, abrasive, abusive, hostile, or obstructive.

Claims of conduct that violate these standards are not investigated by the Office of Lawyer Regulation and instead are handled on a case-by-case basis, with the presiding judge exercising authority over the type of discipline that should be assessed against a lawyer.

While not occurring frequently, lawyers have been chastised by judges for inappropriate behavior during court proceedings including depositions. Lawyers should exercise the highest degree of professionalism to avoid this type of scrutiny.