Calling it a “glaring example of how not to conduct oneself in a legal proceeding,” the Florida Supreme Court has ordered a 60-day suspension and public reprimand of a Florida Bar member who acted in a belligerent and threatening manner during an out-of-state deposition.
Although less than the punishment recommended by the referee in the case, the court said it will not tolerate such conduct by lawyers.
The referee had suggested the lawyer either be disbarred or suspended for two years with probation afterward with extensive conditions. Justices said that was much more severe than the sanctions given to lawyers whose conduct had been more egregious. However, they did say that some sort of suspension was the presumed penalty for such conduct.
The incident that led to the discipline occurred during a five-day videotaped deposition. According to the referee, the attorney was speaking forcefully to opposing counsel when the opposing counsel attempted to place an evidence sticker on the attorney’s laptop computer.
The attorney briefly touched the opposing counsel’s hand, and then attempted to run around the table at the opposing counsel, but was restrained by his own consultant. The conduct scared the deponent and caused the court reporter to say, “I can’t work like this.”
“Respondent then proceeded to forcefully lean over the deposition table, lambaste [opposing counsel] in a tirade while proceeding to tear up the evidence sticker, wad it up and flick or toss it in the direction of [opposing counsel],” the referee wrote. “The respondent’s conduct during the deposition was outrageous, disruptive, and intimidating to the witness, opposing counsel, and other persons present during the deposition and otherwise prejudicial to the administration of justice.”
While the referee recommended disbarment or a two-year suspension followed by probation with conditions, the court cited two comparable cases where lawyers’ conduct had been more egregious (and both, unlike the lawyer in this case, had prior disciplinary histories) which had resulted in 91-day suspensions.
But the court, in its unanimous per curiam opinion, also left no doubt it found the lawyer’s actions unacceptable.
“It is evident that respondent’s brief grabbing of opposing counsel’s hand, his movement around the conference table, and his act of tearing off the exhibit sticker and flicking the wadded-up sticker at opposing counsel during the laptop incident were intentional acts that he knew or certainly should have known violated his professional duties as a Florida attorney. Respondent’s unprofessional, belligerent conduct during the laptop incident is an embarrassment to all members of The Florida Bar,” the opinion said. “[W]e must emphasize that respondent’s behavior during the laptop incident was unacceptable and unbecoming of any member of the Bar, especially one who has been a practicing attorney for more than nineteen years.”
Aside from the 60-day suspension and public reprimand, the court ordered a two-year probation. During that time, the lawyer must undergo mental health counseling and write letters of apology to the deponent, court reporters, and videographer present at the deposition. He must also be accompanied by a Bar-approved lawyer at depositions and other proceedings, or see that those proceedings are video recorded.
The video of the deposition was submitted as part of the record of the case, and the court, in a footnote, suggested a use for it: “The referee has suggested and we agree that members of the Bar and law students could view the video recording of the laptop incident in the context of a course on professionalism as a glaring example of how not to conduct oneself in a legal proceeding.”
The court acted June 24 in case no. SC08-689.