Attorney E-Newsletter

March 2008

Beyond Contempt: Supreme Court Tries Some New Remedies

What do you do when you've done everything you can, and you're still not getting the results? You try something new.

The Supreme Court of Pennsylvania was faced with this dilemma in the case of Mark David Mazza, No. 95 DB 2000. Mazza had been disbarred in 2003. He continued to work as a paralegal with his former firm, and engaged in conduct which in the opinion of the Court violated Rule 217(j) of the Pennsylvania Rules of Disciplinary Enforcement. This rule sets limits on law-related activities which formerly admitted attorneys may perform. The Office of Disciplinary Counsel filed a petition for contempt, and on July 14, 2006, the Supreme Court found Mazza in contempt and referred him to the Disciplinary Board for a sanctions hearing.

The Disciplinary Board noted that since Mazza had already been disbarred, additional discipline was not available as a sanction. The Board analyzed the case law and found one case, In Re Anonymous No. 77 DB 85, 37 Pa. D. & C. 646 (1985),1 in which a fine of $500 had been levied against a Respondent who failed to supply records to Disciplinary Counsel in response to a subpoena.2

Accordingly, the Disciplinary Board recommended that Mazza be fined $1,000. They also recommended that he be barred from applying for reinstatement until August 3, 2010, the tenth anniversary of his temporary suspension. Under the existing order he would have been eligible for reinstatement July 24, 2008.

On review of the Disciplinary Board's recommendation, the Supreme Court of Pennsylvania agreed, and adopted an order imposing a fine of $1,000 and barring Mazza from filing for reinstatement until August 3, 2008.

Both remedies are quite unusual in the Pennsylvania disciplinary system. The case signals the clear intent of the Supreme Court and the Disciplinary Board to hold strictly to the rules that govern the activities of inactive, suspended, or disbarred attorneys.

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Lawyer, Muzzle Thy Client

Courts may be willing to employ new remedies for litigant misconduct, but litigants keep coming up with new ways to misbehave. A judge of the United States District Court for the Eastern District of Pennsylvania faced a challenging problem – a litigant who responded to a deposition with an unbroken stream of profanity and abuse.

In the case of GMAC Bank v. HTFC, Corp., 2008 WL 542386 (2/29/2008), Judge Eduardo C. Robreno found that Aaron Wider, owner and chief executive officer of HTFC, over the course of 12 hours of testimony in a deposition, used vulgar, abusive, and profane language; failed to answer questions; and generally impeded, delayed, and frustrated fair examination. In particular, the transcript shows that Wider dropped the F-bomb 73 times by the opinion's count,3 many of them addressed in abusive ways at plaintiff's counsel. In a 44-page opinion filed February 29, 2008, Judge Robreno imposed sanctions on Wider [Note to the easily offended: the opinion quotes portions of the offensive language verbatim]. He also found that Wider's counsel had not only failed to control his client's obstreperous behavior, but "sat idly by as a mere spectator to Wider's abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in Wider's offensive conduct…" Judge Robreno noted, "It is true that any attorney can be blindsided by a recalcitrant client who engages in unexpected sanctionable conduct at a deposition. An attorney faced with such a client cannot, however, simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down." Judge Robreno found that counsel had contributed to his client's misconduct by his silence, and also by his challenges to opposing counsel to "file whatever motion you want to file" and "snickering" at his client's behavior.

Accordingly, Judge Robreno imposed sanctions of more than $29,000 on Wider and his counsel, jointly and severally. Motions for reconsideration have been filed, and a separate attorney has moved to file his appearance on behalf of defense counsel.

Judge Robreno noted that "counsel for GMAC comported himself with courtesy, respect, and professionalism; this was no easy feat, considering Wider's unrelenting insults, vulgarity, and mockery, most of which were a direct assault on counsel for GMAC." To paraphrase Kipling, if you can keep your head when all about you are losing theirs and blaming it on you, you may be cut out for litigation.

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The Mailbag: Confidentiality Followup

Readers responded to our story last month about two lawyers who, under different circumstances, decided to reveal confidences where the revelations might be of aid to wrongfully imprisoned individuals.

Our readers did not hold back. One writes, "The only thing I find remarkable about the story regarding Leslie Smith is its outrage. For the editors of this website to somehow tout this attorney's actions as somehow redeeming in any fashion is even worse. Smith and the prosecutor should have been prosecuted for suborning perjury. For you to ‘celebrate' these actions as commendable is patently absurd. Were you asleep in ethics class in law school?"

Another reader, himself a criminal defense attorney, writes,

I found to be both interesting and troubling, especially the one involving the Virginia case and attorney Leslie P. Smith. Though I certainly agree that a client's communications with his attorney are sacrosanct, . . . I would think the privilege would be jeopardized because Mr. Smith was present when, as it appeared from your story . . ., his client was being asked to engage in perjury. I realize that Mr. Smith wants to get the best possible result for his client, but what effect on the privilege do the apparently illegal actions of the prosecutor have? And do I, as counsel for a criminal defendant, allow a better deal to be secured for my client by his engagement with the prosecutor in allegedly illegal behavior? . . . I'm both troubled and confused by this situation.

The latter view is closer to our view of these cases. Our goal was not to "celebrate" the actions of any attorney, but to note how difficult questions of confidentiality can be. The Smith case also involves troubling questions of complicity in fraudulent conduct and a lawyer's duties as an officer of the court. Our ambivalence was shared by the Virginia Bar, which first told Smith he could not reveal the information, then reversed itself and allowed him to do so. As clear as the path seems to some readers, there are some to whom the opposite course is equally obvious.

Meanwhile, it's happening again.

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Attorney Browne Greene Seeing Red; Client Blue

Is enmity against the judiciary escalating? Or is it only against judges on escalators?

In any event, the attorney for a Federal judge in California blames prejudice against the judiciary for his client's loss in a jury trial on a $21 million lawsuit he filed after falling on a shopping mall escalator which stopped suddenly. "The bias against judges in today's world is just palpable," attorney Browne Greene4 told the Los Angeles Times.

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FAQ: Furtively Asked Questions

A colleague of mine was suspended from the practice of law a few years ago and is down on his luck. He seems to have reformed and he is interested in getting back into the practice of law. I would like to offer him some work doing research and drafting with my office. Is it ethical for me to hire a suspended lawyer, and what limitations should I put on his duties?

Rule 217(j) of the Rules of Disciplinary Enforcement sets very specific guidelines as to what law-related work a disbarred, suspended, or inactive former attorney may do. The formerly admitted attorney MAY do the following:

  • legal work of a preparatory nature, such as legal research, assembly of data and other necessary information, and drafting of transactional documents, pleadings, briefs, and other similar documents;
  • direct communication with the client or third parties only when it is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages; and
  • accompanying a member in good standing of the Bar of this Commonwealth to a deposition or other discovery matter or to a meeting regarding a matter that is not currently in litigation, for the limited purpose of providing clerical assistance to the member in good standing who appears as the representative of the client.

The formerly admitted attorney shall NOT do any of these activities:

  • performing any law-related activity for a law firm, organization or lawyer if the formerly admitted attorney was associated with that law firm, organization or lawyer on or after the date on which the acts which resulted in the disbarment or suspension occurred, through and including the effective date of disbarment or suspension;
  • performing any law-related services from an office that is not staffed by a supervising attorney on a full time basis;
  • performing any law-related services for any client who in the past was represented by the formerly admitted attorney;
  • representing himself or herself as a lawyer or person of similar status;
  • having any contact with clients either in person, by telephone, or in writing, except as provided in paragraph (3);
  • rendering legal consultation or advice to a client;
  • appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;
  • appearing as a representative of the client at a deposition or other discovery matter;
  • negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction; or
  • receiving, disbursing or otherwise handling client funds.

You and the formerly admitted attorney must file a notice of employment with the Disciplinary Board, identifying the supervising attorney, certifying that the formerly admitted attorney has been employed and that the formerly admitted attorney's activities will be monitored for compliance with these requirements. You should also file a notice with the Disciplinary Board upon termination of the formerly admitted attorney's services.

Be very careful to familiarize yourself with these requirements and supervise the work of a formerly admitted attorney in your employment, as Rule 217(j)(6) specifically states that you may be subject to discipline for any failure by either you or the formerly admitted attorney to comply with these requirements.

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1 The citation given in the published report is incorrect.

2 Such conduct warrants temporary suspension under current Rule 208(f)(5), Pa. R.D.E.

3 We hope this statistic was generated by the reporter's computer indexing system, not by a federal employee actually counting.

4 We did not make this up. Honest! Check the link!