By Douglas J. Ende

For lawyers, there are many paths to professional perdition. Although not every misstep will result in disbarment, the ways in which lawyers’ lesser acts of ignominy result in embarrassment, humiliation, and disgrace are countless. Nevertheless, in this first of a series of columns focusing on the world of extreme lawyer misconduct and blunders, we attempt to count them.

If you wish to avoid an analogous fate, study the precepts we have derived from these five true tales of professional woe, and behave otherwise. In other words, do not:

1. Lose Your Cool in the Clutch

   There is an old adage that “a man who acts as his own counsel has a fool for a client.” Acting as counsel for one’s spouse may be no wiser.

   In 1987 in Indiana, a lawyer was named as a co-defendant, along with a corporation, in a civil adversary proceeding. The respondent’s wife, as representative of the defendant corporation, was deposed by plaintiff’s counsel. The respondent was present, serving as her counsel. Throughout the questioning that day, plaintiffs sought to discover the whereabouts of a certain sum of money paid to the corporation. The respondent’s wife consistently expressed a lack of knowledge or failure of memory with respect to the funds.

   According to the Supreme Court of Indiana, “the overall tenor of the deposition was emotional and tense.” Eventu-ally, during questioning by plaintiff’s counsel, the respondent’s wife indicated that she was not feeling well and rose from her seat. The facts of the immediately ensuing events were disputed. The respondent contended that the plaintiff’s attorney rose from his chair rapidly as the respondent’s wife attempted to leave the room. Other witnesses did not recall this. According to the respondent, he was acting out of a belief that plaintiff’s attorney was rising to prevent her leaving. In any event, respondent threw the contents of a soft drink cup on the plaintiff’s attorney and grabbed him near or around his neck, restraining him in his chair.

   The disruption (as recounted by the Indiana Supreme Court in a wry coda) “resulted in the deposition’s premature conclusion.” Observing that “violent outbursts of this sort will not be tolerated,” the court ordered a sixty-day suspension from the practice of law.

2. Profess Ignorance of the Law

   One can’t be too cautious, even at an out-of-state CLE. In 1999, a Michigan assistant prosecutor in the domestic violence unit attended a domestic violence conference in Sparks, Nevada, a suburb of Reno. He called police after a prostitute he had hired robbed him of a Rolex watch and $500 in his hotel.

   Although prostitution is legal in some Nevada counties, it came as news to this lawyer that it is illegal in Washoe County, where the lawyer was staying. He told Sparks police that he thought prostitution was legal there. The situation did not sit well with the folks back home in Michigan. “If the information that I’ve received is accurate, I’m terribly disappointed,” said his boss.

   Although caught with his proverbial pants down, the lawyer didn’t see a problem. “I’m the victim here. I’ve done nothing wrong,” he told The Detroit News. Though not charged in Nevada, he was suspended with pay pending a formal hearing in prosecutor’s office. The hearing resulted in his demotion from Assistant Prosecuting Attorney IV to Assistant Prosecuting Attorney III. “A lot of people think it’s legal, but it’s not in all counties,” a Sparks police detective said. “It’s illegal here in Washoe, but it’s OK in the next county due west. I feel sorry for these people, but ignorance of the law is no excuse.”

3. Make a Big Stink About Minutiae

   Be careful what you move for. When lawyers at large law firms in Chicago and Milwaukee moved to strike a summary judgment motion on grounds that it had been filed approximately five minutes beyond the e-filing deadline, the federal district court was not amused.

   In an order that was widely circulated among aficionados of judicial humor, the federal magistrate judge scolded each of the nine lawyers by name. The opinion is a classic of jurisprudential sarcasm, and it is reproduced here in full:

   Pursuant to the modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions. Any electronic document may be e-filed until midnight on the due date. In a scandalous affront to this court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don’t know this personally because I was home sleeping, but that’s what the court’s computer docketing program says, so I’ll accept it as true.

   Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, namely Mark A. Cameli, Lynn M. Stathas, Andrew W. Erlandson, Raymond P. Niro, Paul K. Vickrey, Raymond P. Niro, Jr., Robert Greenspoon, Matthew G. McAndrews, and William W. Flachsbart, promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

   Wounded though this court may be by Microsoft’s four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness, Indeed, to demonstrate the even-handedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up to seventy-two minutes later.

   Having spent more than that amount of time on Hyper-phrase’s motion, it is now time to move on to the other Gordian problems confronting this court. Plaintiff’s motion to strike is denied.

   Hyperphrase Technologies v. Microsoft Corporation, 56 Fed.R.Serv.3d 467, 2003 WL 21920041 (W.D. Wis. 2003).

4. Antagonize Those in Positions of Power
   Some folks just can’t wait to go astray. One student at the University of South Dakota Law School engaged in a campaign of misbehavior so unrelenting that he was denied permission to sit for the Nebraska bar examination on grounds of deficient moral character. The opinion of the Nebraska Supreme Court recounts many of the incidents:
   • After the completion of his first semester, the student sent a letter to the assistant dean regarding certain issues that he had had with the law school during fall classes, closing that letter with the phrase, “Hope you get a full body tan in Costa Rica.”
   • After he received a grade he believed to be unjustified, the student wrote letters to the assistant dean and the dean of the law school requesting assistance with an appeal of that grade. In addition he sent a letter to the South Dakota Supreme Court regarding the professor’s characterization of his arguments, with indications that carbon copies of the letter were sent to two well-known federal court of appeals judges. The letter was written to suggest the professor believed her stance on certain issues was more enlightened than that of the judges. The student never actually appealed the grade.
   • The student prepared a memorandum and submitted it to his classmates, urging them to recall an “incident” in which a professor had lashed out at him in class, and to be cognizant of the image that incident casts “on [that professor’s] core professionalism” prior to completing class evaluations.
   • The student wrote a letter to a newspaper in South Dakota regarding a proposed fee increase at the law school. After investigating the salaries of all the law professors he posted a list of selected professors’ salaries on the student bulletin board, as well as writing a letter that accused the dean of trying to pull a “fast one.”
   • The student displayed a photograph of a nude female’s backside in his study carrel in the law library. The picture was removed by a law librarian. In response to the removal of this photograph, the student contacted the American Civil Liberties Union and went to the student newspaper to alert the student body of the actions of the law school authorities, accusing them of unconstitutional censorship. He redisplayed the photograph once it was returned by the law librarians. The dean received several complaints about the photograph from other students, but he elected not to remove it again because he did not want to involve the school in controversy during final examinations. The student insisted that he was redisplaying the photograph in order to force the alleged constitutional issue.
   • The student filed an ethics complaint with the North Dakota Bar Association regarding certain correspondence between the dean of the law school and a retired justice of the North Dakota Supreme Court. Though the complaint was dismissed, he brought the matter to the attention of the University of South Dakota student newspaper and also contacted the president of the University, referring to the dean as an “incompetent” and requesting that he be fired.
   • The student abortively attempted to obtain an internship with the U.S. Attorney’s office in South Dakota without complying with law school procedures. Consequently, the proposed internship was rejected by the law school. Upon receiving his denial, the student sent a complaint to the entire law school faculty and contacted the chairperson of the law school committee of the South Dakota State Bar Association with his complaint, expressly referring to the dean as being “arrogant.”
   • The student filed a lawsuit against the dean for violations of his First Amendment rights. He was also involved in a dispute with other law students, in which he threatened to file a lawsuit and warned the students that all lawsuits in which they were involved would need to be reported to proper authorities when they applied to take a bar examination.
   • The student produced and marketed a T-shirt on which a nude caricature of the dean was shown sitting astride what appeared to be a large hot dog. The cartoon on the shirt also contained the phrase “Astride the Peter Principle,” which, according to the student, connoted the principle that the dean had been promoted past his level of competence; however, the student admitted that the T-shirt could be construed to have certain sexual overtones. In response to not being allowed to post signs and fliers at the law school, the student sent a memo to all law students in which he noted to his fellow students that his “Deanie on a Weanie” T-shirts were in stock. In that same memo, he included a note to his schoolmates: “So far 4 causes of action have arisen, courtesy Tricky Vickrey. [He then listed what he believed the causes of action to be.] When you pass the SD Bar, if you want to earn some atty [sic] fees, get hold of me and we can go for one of these. I’ve kept evidence, of course.”
   
   As part of the Nebraska State Bar application process, the student was required to request that the dean of his law school submit a form certifying completion of his law school studies. That form contained a question asking, “Is there anything concerning this applicant about which the Bar Examiners should further inquire regarding the applicant’s moral character of fitness to practice law?” The question was answered, “Yes,” and the dean also noted, “Additional information will be provided upon request.” The ensuing investigation revealed the facts that led to a denial of the student’s application to take the Nebraska bar examination, a decision ultimately upheld by the Nebraska Supreme Court.

5. Engage in a Shameful Display of Atrocious Deportment

   Some misconduct speaks for itself. In 1979 in New Jersey, during the course of defending a child abuse/neglect proceeding, a lawyer’s in-court conduct, his out-of-court conduct towards lawyers witnesses and bystanders in the courthouse, and his written communiquŽs with the court reached a level of impropriety that resulted the filing of a 22 count ethics complaint.

   During the proceeding, the respondent accused the judge on numerous occasions of, inter alia, collusion with the prosecution, cronyism, racism, permitting the proceedings to have a “carnival nature”, conducting a kangaroo court, prejudging the case, conducting a “cockamamie charade of witnesses” and barring defense counsel from effectively participating in the proceedings, conducting a sham hearing, acting outside the law, being caught up in his “own little dream world,” and ex-parte communications with the prosecutor together with, according to the Supreme Court of New Jersey, “other equally outrageous, disrespectful and unsupported charges.”

   In its disciplinary opinion, the court included a sampling of the lawyer’s reprehensible behavior towards witnesses, potential witnesses, opposing counsel, and other attorneys:

   • Outside the courtroom, respondent and the public defender who was the statutory guardian of the children were discussing the issue of visitation. Argument ensued, during which, among other obscenities, respondent told the other lawyer to “go screw himself” and “fuck off”, and referred to him as “asshole,” “schmuck” and “schmuckface,” all in the presence of several individuals involved in the case.
   • During a settlement conference, respondent referred to a female attorney as “Miss Wrinkles,” “Miss Bags,” and “old bag,” and stated to her, “Shove it up your ass” and “go fuck yourself.”
   • In the courthouse corridor, after attempting to intimidate a witness by directing her to answer everything he asked while his secretary wrote down the responses, respondent advised another lawyer who was standing with the witness but not involved in the proceeding to “just keep your god damn nose out of my business.” His conversation thereafter was peppered with the phrase “fuck you.” The public defender, who at that point asked respondent’s secretary if she was recording the obscene remarks, was charged by respondent, who pressed a Bic pen into the public defender’s chest.
   • Later in the day, respondent approached the bystander-lawyer and demanded his card, indicating that it was needed to file an ethics complaint. When the lawyer refused to give respondent a card, respondent persisted in his demands in a loud manner, punctuating the demands with questionable phrases, including “shmuckface,” “fuck-face,” and “shit-head.” He continued in this manner for some time, adding to his action by poking his finger in the lawyer’s chest. Prior to removing himself from the area, respondent intentionally bumped the lawyer with his stomach and then his shoulder, and thereafter advised the lawyer that he could take his law firm and “shove it up my ass.”
   • Subsequently, while the public defender, the deputy attorney general representing the Division of Youth and Family Services, and the bystander-lawyer were conversing in the courthouse, respondent approached, stating loudly that the deputy attorney general should not be believed since “she’s a bald-faced liar.” He then called her “fuckface,” and while walking away again made the suggestion “shove it up your ass.” Within the next several minutes, respondent twice approached the group, each time pushing into the deputy attorney general, causing her to lurch against a desk in the hallway.

   For these and many, many other instances of misbehavior, respondent was found to have committed, inter alia, conduct prejudicial to the administration of justice, conduct that adversely reflects on one’s ability to practice law, undignified or discourteous conduct that is degrading to a tribunal, and the knowing making of false accusations against a judge. The Supreme Court of New Jersey characterized the lawyer’s behavior as “a shameful display of atrocious deportment calling for substantial discipline.” He was suspended from the practice of law for one year.

   This lawyer failed to learn any lessons from his initial disciplinary experience. In 1989, he was again suspended, this time for three months, for challenging opposing counsel and a witness to fight; for using loud, abusive and profane language against his adversary and an opposing witness; and for using racial innuendo on at least one occasion. He also called a deputy attorney general a vulgar name, was extremely abusive toward a judge’s law clerk and told her that she was incompetent.

   In 1994, he received an admonition for failing to comply with discovery requests in a disciplinary matter and for falsely testifying at the ethics hearing. In 1997, he was suspended for one year for, inter alia, engaging in conduct intended to disrupt a tribunal.

   Finally, in 1998, for having engaged in a pattern of abuse, intimidation, and contempt toward judges, witnesses, and opposing counsel, alluding to irrelevant matters, asserting personal knowledge of facts in issue, filing appeals and motions after being removed from case by court order, asserting falsehoods and misrepresentations in certifications filed with courts, misrepresenting status of state appeal and federal litigation to a client, and failing to cooperate with Office of Attorney Ethics, the lawyer was disbarred.

   The Supreme Court of New Jersey remarked, “To characterize his conduct as unprofessional, irrational, intemperate, insolent, arrogant, abusive, insulting, harassing, scurrilous, and misleading--as it has been characterized in his various disciplinary proceedings--is to minimize its impact on the administration of justice.”

While each of these lawyers may have played the fool, be assured that their stories are true. We make these five examples available to you as cautionary tales so that you needn’t learn the hard way.