While some lawyers view incivility as a relatively minor transgression, a recent New York Supreme Court decision shows incivility can be costly.
Justice Andrea Masley’s decision is noteworthy not only because of the steep penalties she imposed but also because of the strength of the opinion itself. Justice Masley rejected the notion that incivility is simply vigorous advocacy and instead reinforced civility as a first principle of the legal profession.
Objecting on the grounds of ‘being obnoxious’
The litigation at issue involved a dispute over music publishing and production agreements between plaintiff Jacob Hindlin, a music writer and producer, and defendants Prescription Songs LLC and Kasz Money, Inc., a music publishing company and a music production company, respectively. (See Hindlin v. Prescription Songs LLC, New York Supreme Court, New York County; Cal. No. 2022L-01547; Ind. No. 651974/2018.)
Defendant Kasz Money filed counterclaims, including claims against Nonstop Management, LLC, which served as plaintiff Jacob Hindlin’s manager. Notably, the plaintiff’s wife Jaime Hindlin was the CEO of Nonstop Management.
The defendants sought to depose Mrs. Hindlin, and Justice Andrea Masley ordered that her deposition be taken over two days. Following day one of Mrs. Hindlin’s deposition, however, the defendants sought sanctions against the lawyers representing Mr. and Mrs. Hindlin. They alleged that the Hindlins’ lawyers:
(i) relentlessly obstructed the deposition by making personal attacks on Defendants’ counsel and our law firm with disparaging and insulting diatribe and threats of retribution in violation of established rules of civility and the rules of professional conduct, (ii) amplified this orchestrated obstruction repeatedly with pages and pages of argumentative speaking objections, often filled with invective, and (iii) repeatedly instructed the witness not to answer appropriate questions.
(Defendants’ Memorandum of Law, NYSEF Doc. No. 960, p. 1.)
According to the defendants, the lawyers representing the Hindlins collectively “interjected with improper speaking objections and/or colloquy” approximately 300 times, and Mrs. Hindlin was improperly instructed not to answer 30 questions. (Id., at pp. 2-3.)
The defendants also alleged that the Hindlins’ lawyers “repeatedly engaged in abusive, unprofessional, insulting, and bullying behavior, stating to opposing counsel, among other things:
- ‘You’re pretty terrible about asking questions…’
- ‘I’m going to object on the grounds of it being obnoxious.’
- ‘Somebody ought to teach you about conducting depositions.’
- ‘[S]omebody ought to run a CLE program for your firm.’
- ‘I suggest that maybe you and your colleagues attend a CLE about what depositions are really about.’
- ‘[W]e have a combined approximately … 100 years of litigating experience, and I join in his — in his statement. And, by the way, I know [other] lawyers who have the same opinion of you gentlemen.’
- ‘You’re going to get your comeuppance for this, I can guarantee it.’
- ‘If you don’t show up [to a post-deposition conference], you will suffer the consequences. It is not a threat. It is a promise.’”
(Id., pp. 1-2) (Internal emphasis and citations omitted.)
Additionally, the defendants asserted that “counsel repeatedly swore, and used inappropriate and aggressive language throughout the deposition” and suggested that if the defendants’ counsel continued asking questions about a certain topic, then “God help you, because it will be up to a higher [power] than me or the Court[,] and you have to look at yourselves in the mirror in the morning.” (Id., p. 10.)
The Hindlins’ lawyers filed pleadings in opposition to the Motion for Sanctions, arguing the questions posed by the defendants’ lawyers were improper both in form and substance and designed to cause undue stress and the waiver of privilege. (See e.g., Affirmation in Opposition, NYSEF Doc. No. 975; Memorandum in Opposition, NYSEF Doc. No. 995.) They also emphasized the significant health challenges the witness was already experiencing.
The risks of ‘tarnishing the profession’
Justice Masley, however, rejected these arguments. Following her review of the deposition transcript and the parties’ pleadings, she issued a decision, sanctioning the Hindlins’ lawyers. (NYSEF Doc. No. 1037.)
In her ruling, Justice Masley found that:
This is not the first time [Attorney] Goodman has exhibited this type of unprofessional, bullying behavior in this action, though it was only brought to this court’s attention with this motion. … [Goodman: ‘You are not very good at asking questions, but you are very good at interrupting others.’], … [Goodman: ‘You are really obnoxious’]; … [Goodman: ‘wipe that silly smile off your face’] … [Goodman: ‘You have no knowledge of the law at all. You’re a joke …. you’re nonsense.’]; … [Special Master: ‘Ok, Mr. Montclare. You are on mute sir … You’ve got to unmute yourself.’ Montclare: ‘I said it’s nice to see you again …’ Goodman: ‘You could have stayed on mute Paul. That would have been fine’].
(Id., at p. 4.) Justice Masley then delineated key reasons why lawyers must exhibit civility, even when vigorously advocating for their clients.
First, Justice Masley noted that “lawyers are expected to ‘advise their clients and witnesses of the proper conduct expected of them … and make reasonable efforts to prevent [them] from causing disorder or disruption.”‘ (Id., pp. 4-5) (quoting 4C NY Prac, Com Litig in New York State Courts § 86: 16). As such, Justice Masley exhorted that “[a]ttorneys must model civility for their clients.” (Id., at p. 5.)
Second, Justice Masley found that incivility impedes legal proceedings. She explained that a lawyer’s incivility in a deposition might “incite the witness,” thereby “necessitating that the deposition be retaken.” (Id.) Instead of emboldening witnesses to join them in thwarting legal proceedings, Justice Masley underscored the obligation lawyers have to intervene when their witnesses engage in abusive or obstructive conduct.
Finally, and perhaps most importantly, Justice Masley found that incivility “tarnishes the profession.” (Id.) Accordingly to Justice Masley, “[o]ffensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable.” (Id.)
She emphasized that “[a]n attorney who demonstrates a lack of civility, good manners and common courtesy taint the image of the legal profession and, consequently, the legal system, which was created and designed to resolve differences and disputes in a civil manner.” (Id.) (Internal quotations and citations omitted.)
Justice Masley then ruled that the conduct of the Hindlins’ lawyers was “uncivil and obstructive” and therefore sanctionable. (Id., p. 6.) She ordered the following:
- The Hindlins’ lawyers must reimburse the defendants the fees and expenses they incurred during the first day of the deposition and in connection with filing the motion for sanctions. The defendants attested that such fees and costs totaled $56,040.54.
- The attorney representing the witness, Mrs. Hindlin, was required to pay $2,000.00 to the Lawyers’ Fund for Client Protection.
- The attorney representing Mr. Hindlin was required to pay $10,000.00 to the Lawyers’ Fund for Client Protection for engaging in obstructive conduct despite not even being the witness’ lawyer.
- The Hindlins’ lawyers were mandated to attend a CLE on civility and provide the CLE instructor with a copy of the deposition transcript at issue so the instructor could use it in his seminar “as an example of uncivil sanctionable behavior.” (p. 6, n. 8.) They were then required to submit to the court “an affirmation attesting to their attendance and whether they complied with this court’s order that they read the standards of civility.” (Id., p. 7.)
The Hindlins’ lawyers appealed Justice Masley’s Order, and such appeals remained pending as of the date of this blog’s initial publication.
Civility is foundational to our justice system
While surveys conducted by the Illinois Supreme Court Commission on Professionalism show that incivility is commonplace in the legal profession, the imposition of judicial sanctions for incivility is far less common.
Indeed, many litigators and law firms are loath to even seek sanctions against opposing counsel, as they don’t want to be perceived as weaponizing motions and legal proceedings and are concerned about escalating a cycle of incivility. Ironically, some of the lawyers most likely to threaten to seek sanctions are those whose behavior is most warranting of sanctions.
This creates a quandary for judges wishing to foster civility, as a significant amount of incivility occurs outside of the courtroom and is never brought before them via a motion. Some Illinois judges are proactively attempting to prevent incivility in their courtrooms.
For example, the Domestic Relations Division of the Cook County Circuit Court has an expansive civility Rule which includes a prohibition against lawyers “engag[ing] in offensive conduct or do[ing] any acts that may contribute to hostility or acrimony between the parties or others related to the pending action,” “even when called upon by a client to do so.” (Rule 13.11(a)(iv).)
Additionally, earlier this year, Judge Michael J. Chmiel of the 22nd Judicial Circuit in McHenry County, Illinois, issued a Standing Order on Professionalism and Civility, stating that “Parties and the attorneys who represent them are reminded to engage in professionalism and civility in the handling of cases which come before the Court.” As Judge Chmiel told me in a Reimagining Law interview, “we as judges have to use the tools we have” to combat incivility.
Justice Masley did just that in her Order. Not only did she impose sanctions to punish alleged incivility in the case before her, but she also wrote an instructive opinion articulating the foundational role of civility in preserving both the legal profession and the justice system.
As Justice Masley noted, “[s]ociety at large, and the legal community in particular, is increasingly less tolerant of sharp practices and sharp behavior that verges on harassment. It is a question of enlightened self-interest for lawyers and their clients to be tough yet civil.” (Id., p. 3) (quoting Hon. Lawrence K. Marks, Jeremy Feinberg and Laura Smith, § 86:1 Scope note, 4C NY Prac, Com Litig in New York State Courts § 86:1 [5th ed.].)
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