We should take note of that adage when dealing with adversaries who really get under our skin. Virtually all lawyers send snarky e-mails and missives now and then. But in rare instances, lawyers may go too far in communications with adversaries and cross the line between zealous advocacy and unethical conduct.
In In re Beckerman, DRB No. 14-176, the Supreme Court of New Jersey Disciplinary Review Board (“DRB”) recommended a lawyer be censured for the tone and content of his communications with a very litigious pro se adversary. The lawyer, a long-time member of the Missouri and New Jersey bars, represented the pro se party’s former spouse.
Almost immediately after the case was initiated, the pro se party set an uncivil tone, accusing the lawyer of engaging in “specious,” “wrongheaded,” and “illegal” ex parte communications with the bankruptcy court. The pro se party also objected to the lawyer depositing sale proceeds from an apartment into the lawyer’s trust account, stating that the lawyer was the “LAST person” he would trust, and that the lawyer would use the money “for future lawsuits, or other reckless, unethical actions.”
The lawyer replied, stating that the pro se party was well-versed in legal procedure by having brought 67 prior pro se matters and that he was a “lawyer by way of T.V.” who used “blatant lies in his diatribes as if they were facts . . . .” The lawyer also objected to the pro se party referring to himself as “Dr.” because the pro se party was only a chiropractor.
But that was just the beginning. (Following are just some examples of the many communications the DRB described in its 30-page Decision.)
Over the next several years, the communications got even more personal. In letters submitted to the court, the pro se party called the lawyer’s ideas “moronic” and “ludicrous.” The pro se party also attacked the lawyer’s age, referring to him as senile. The lawyer, in turn, criticized chiropractors as not being bright enough to attend medical school.
The lawyer wrote that he understood why the pro se party was such “a nothing” and stated that he got fatter each time he encountered him. And on a number of occasions, the lawyer accused the pro se party of deliberately lying by not listing the apartment on a bankruptcy petition, and threatened him with criminal prosecution.
The DRB also noted that in communications with his own client, the lawyer referred to the pro se party as “bizarre,” “the Phd,” an “illogical a-hole,” “fuzzy minded,” “stupid,” and “the RETARDED one.”
Even after the pro se party filed a grievance against the lawyer, the insults and attacks between the two continued in court submissions.
The lawyer was charged with five ethics violations, and all were dismissed except for two: violations of N.J. RPC 3.2 (failing to treat with courtesy and consideration all persons involved in the legal process) and N.J. RPC 3.4(g) (threatening to present criminal charges to obtain an improper advantage in a civil matter).
The DRB found that censure was appropriate. Obviously troubled by the length of the misconduct (five years), the number of comments, and the level of spitefulness and unprofessionalism, the DRB found that in the course of representing his client, the lawyer “sunk to [the pro se adversary’s] level of incivility.” It noted that even though the pro se party initiated the discourteous communications, the lawyer should not have retaliated, but instead should have asked the court to intervene.
If there is no appeal from this decision, the DRB’s determination will become final upon entry of an order from the New Jersey Supreme Court clerk.
What’s the takeaway?
- In Beckerman, a recommendation for censure resulted from lengthy, deep-seated dislike between adversaries. Standing alone, one or two strongly worded jibes, or one-off snarky comments in communications with an opposing counsel probably will not likely result in discipline.
- The court should never be included in communications between opposing counsel (even polite communications) except in rare instances, such as if a litigant needs to build a record of communications regarding discovery, or to request court intervention if opposing counsel engages in persistent incivility (as the DRB suggested in Beckerman).
- Note that the investigation encompassed communications between the lawyer and his client, in which the lawyer used derogatory language to describe the pro se party.
You have a duty to represent your clients zealously and diligently. Zealous advocacy, however, becomes tangled in the ethical thicket when adversaries attack one another personally and fail to focus on the task at hand – protecting the client’s interests.