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Mruz v. Caring

August 15, 2000

JOHN MRUZ, VASILIKE D. NIKA, AND JANE JOHNSON,
PLAINTIFFS,
V.
CARING, INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Kugler, United States Magistrate Judge

OPINION

This court is, regrettably, once again faced with an allegation of attorney misconduct and a motion to revoke pro hac vice admission. As is becoming clear to attorneys who practice in this District, this court is growing increasingly distressed by the deteriorating level of civility and decorum that has long been the hallmark of this estimable profession. It is the obligation of this court to protect and nurture the vestiges of professional legal conduct so that the practice of law is once again not only socially and commercially valuable, but also enjoyable and worthy of esteem. This court takes this obligation seriously, and conduct before the court that violates the principles of courtesy and professionalism embodied in the Rules of Professional Conduct will not be tolerated.

Defendants Fox, Rothschild, O'Brien & Frankel, LLP, and Ian Meklinsky, Esquire, have moved before this court for an Order revoking the pro hac vice admission of plaintiffs' counsel, Gary Green, Esquire, for his misconduct during several depositions. Defendants also have moved for certain other sanctions, including a protective order precluding Mr. Green from any further participation in this case as an attorney, either directly or indirectly, and an order awarding defendants attorneys' fees and costs associated with the filing and resolution of this motion.

As discussed below, this court finds that Mr. Green's misconduct violated fundamental precepts of professional civility and, accordingly, revokes his pro hac vice admission. The court denies that portion of defendants' motion that seeks certain other relief.

I. INTRODUCTION

Plaintiffs filed this action on March 21, 1997, against their former employer and associated entities and individuals, referred to here as the Caring defendants. *fn1 The extensive factual background of this case is set forth in detail in two prior Opinions by the Honorable Stephen M. Orlofsky, published at 991 F. Supp. 701 (D.N.J. 1998) ("Mruz I"), and 39 F. Supp.2d 495 (D.N.J. 1999) ("Mruz II"). Also named as defendants were Fox, Rothschild, O'Brien & Frankel, the law firm that the Caring defendants hired to represent it in connection with the plaintiffs' allegations of Medicaid and tax fraud, and Ian Meklinsky, Esquire, an attorney associated with the Fox, Rothschild firm (hereinafter collectively referred to as "the Fox defendants"). *fn2

Susan B. Pliner, Esquire, of Sidkoff, Pincus & Green, P.C., a licensed New Jersey attorney, entered her appearance as counsel of record for the plaintiffs. *fn3 On July 7, 1997, the court granted the unopposed motion of Gary Green, Esquire, of Sidkoff, Pincus & Green, P.C., to be admitted pro hac vice as counsel for plaintiffs. Mr. Green is not licensed in New Jersey, but he certified that he was a member in good standing of the bar of Pennsylvania, and that he was familiar with, and agreed to comply with, the Local Rules for the District of New Jersey, including all disciplinary rules. The Order granting Mr. Green's pro hac vice status stated that Mr. Green shall be bound by the Local Civil Rules, including the provisions regarding disciplinary rules. The Order specifically referred Mr. Green to Local Civil Rule 103.1 (then Rule 6), and Local Civil Rule 104.1 (then Rule 7).

Rule 103.1 provides that the Rules of Professional Conduct of the American Bar Association, as revised by the New Jersey Supreme Court, shall govern the conduct of attorneys admitted to practice in this court. This Rule also incorporated the Guidelines for Litigation Conduct, which were adopted by the American Bar Association's Section of Litigation, August, 1998, to "encourage civility, courtesy and professionalism among the bench and the bar," which Mr. Green acknowledged that he had read. *fn4 (Tr. 129:17 to 21). Rule 104.1 provides for discipline for attorney misconduct.

II. BACKGROUND

A. Previous Warnings

From the beginning, both plaintiffs' counsel and defense counsel have made this case exceedingly contentious, so much so that they have been previously reprimanded by Judge Orlofsky for their unprofessional and ad hominem attacks in their briefs submitted to the court and for their abuse of the litigation process.

In Mruz I, the court characterized plaintiffs' briefs as containing "enough blunderbuss and invective so as to border on the uncivil." *fn5 991 F. Supp. at 711. The court concluded with:

Plaintiffs' brief contains several ad hominem attacks on Defendants which I decline to repeat here [some of which were listed at n. 14]. While I recognize and indeed, encourage the professional duty of counsel to represent their clients with zeal and vigor, I take this opportunity to remind counsel of their obligations under Rule 11 of the Federal Rules of Civil Procedure, and of their duties to this Court. 991 F. Supp. at 721.

In Mruz II, the court repeated the warnings, this time specifically with reference to a brief filed by defense counsel: "Attorneys who reflexively react to 'litigation abuse' by engaging in similar conduct disserve their clients and burden the dockets of busy courts. For the second time in this case, I admonish counsel that such conduct is unprofessional, unwarranted and unseemly. It will not be tolerated in the future." 39 F. Supp.2d at 507.

Mr. Green acknowledged that while primarily directed at defense counsel, the warning applied to his conduct as well. (Tr. 118-8 to 119-8). He also understood that a violation of these explicit commands or the Rules of Professional Conduct would lead to sanctions. (Tr. 118-4 to 7).

B. The Depositions

This is a deposition-intensive case, with many of the depositions spanning several days over many months. At the time this motion was filed, twenty-nine days of depositions had been conducted, and several more depositions remained to be taken. Most of the depositions have been conducted by Alan S. Naar, Esq., one of the attorneys for the Fox defendants, and Robert B. Davitch, Esq., one of the plaintiffs' attorneys from Sidkoff, Pincus & Green, P.C., who also has been admitted pro hac vice in this case. There have been no allegations of misconduct between Messrs. Naar and Davitch, or among any other lawyers participating in the depositions in this case, other than Mr. Green.

Mr. Green conducted or participated in the following depositions: (1) one day of the deposition of Caring board member, Sister Grace Nolan; (2) one day of the deposition of Caring board member, Rev. Garfield Greene; and (3) four days of the deposition of Defendant Ian Meklinsky. *fn6 It was after the fourth day of Mr. Meklinsky's deposition on May 10, 2000, that defense counsel suspended the remainder of the deposition and sought leave from the court to file this motion, which was granted. *fn7

Defense counsel claim that at all of the depositions in which Mr. Green participated, he engaged in highly uncivil and abusive behavior clearly designed to intimidate witnesses and counsel and to obstruct the discovery process. Mr. Green, on the other hand, strenuously denies that he did anything wrong. He is both apologetic for what he terms "isolated instances" of a lack of restraint and ardently defensive of his overall conduct, characterizing his efforts as zealous advocacy on behalf of his clients. Counsels' arguments are addressed more fully below.

In connection with this motion, the parties submitted extensive briefs, exhibits, certifications, and supplemental certifications. Oral argument was held on this motion on July 7, 2000. This court has carefully reviewed the portions of the deposition transcripts that were supplied with the moving papers, and listened to the audio tapes of Mr. Meklinsky's deposition that were made by the court stenographer. *fn8 Specific sections of the deposition transcripts that bear upon this motion are set forth below.

III. DISCUSSION

A. Court's Inherent Power to Discipline Attorneys

Defense counsel asks the court to exercise its inherent power to revoke the pro hac vice admission of Mr. Green. The scope of a court's inherent power to sanction attorney conduct was explored in Chambers v. Nasco, Inc., 501 U.S. 32, 111 S.Ct. 2123 (1991). The Chambers Court recognized that "[c]courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates." 501 U.S. at 43 (quoting Anderson v. Dunn, 6 Wheat. 204, 227, 5 L.Ed.242 (1821)). These powers are "'governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Id. (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962)).

Courts are vested with great discretion in imposing sanctions under their inherent powers, limited by the principles that inherent powers must be exercised with "restraint and discretion," and that the particular sanction must be tailored to address the harm identified. Id. at 44-45. See Republic of Philippines v. Westinghouse Electric Corp., 43 F.3d 65, 74 (3d Cir. 1995); Martin v. Brown, 63 F.3d 1252, 1264-65 (3d Cir. 1995).

The Third Circuit has cautioned courts to make specific factual findings before imposing sanctions under their inherent powers. Republic of Philippines, 43 F.3d at 74-75. A court must evaluate the conduct at issue and explain why it warrants a sanction, giving weight to such things as whether it was a pattern of misconduct or an isolated incident, whether it was a grave wrongdoing or a minor infraction, whether it actually prejudiced the wrongdoer's opponent or hindered the administration of justice, and whether mitigating factors exist. Id. at 74. A court also "must specifically consider the range of permissible sanctions and explain why less severe alternatives to the sanction imposed are inadequate or inappropriate." Id. A court need not make a specific finding of bad faith in order to impose sanctions under its inherent power. *fn9

The scope of a court's inherent power is very broad, and it includes the authority to control admission to its bar and to discipline attorneys who appear before it, including those admitted pro hac vice. Chambers, 501 U.S. at 43; In re Tutu Wells Contamination Litig., 120 F.3d 368, 383 (3d Cir. 1997) (explaining that federal courts have many disciplinary sanctions available, including the power to control admission to its bar, discipline attorneys, and disqualify counsel); In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 160 (3d Cir. 1984) ("One of the inherent powers of any federal court is the admission and discipline of attorneys practicing before it."); Cannon v. Cherry Hill Toyota, 190 F.R.D. 147, 161 (D.N.J. 1999) (court's inherent power "may be invoked to regulate the conduct of lawyers appearing before it and, when necessary, may be invoked to impose sanctions on those lawyers who violate the Rules of Professional Responsibility, the Federal Rules of Civil Procedure, the Local Rules or the general obligations of attorneys practicing in the federal courts to work towards a just, speedy and efficient resolution of claims").

This District has expressly endorsed our courts' authority to discipline attorneys practicing here, whether they are licensed in New Jersey or admitted pro hac vice. See Local Civil Rule 104.1 (Discipline of Attorneys) ("The Court, in furtherance of its inherent power and responsibility to supervise the conduct of attorneys who are admitted to practice before it or admitted for the purpose of a particular proceeding (pro hac vice), promulgates the following Rules of Disciplinary Enforcement . . ."); Local Civil Rule 103.1 (Judicial Ethics and Professional Responsibility), comment 2 ("[T]he District of New Jersey follows the Rules of Professional Conduct promulgated by the New Jersey Supreme Court," and "both local counsel and counsel appearing pro hac vice are subject to the Court's disciplinary powers."); Local Civil Rule 101.1(c)(4) (Admission of Attorneys) ("A lawyer admitted pro hac vice is within the disciplinary jurisdiction of this Court."). *fn10

B. Pro Hac Vice Revocation as a Disciplinary Sanction

As a general rule, an attorney licensed and in good standing in one state will be permitted to make an appearance in a federal court sitting in another state as a matter of comity. See L. Civ. R. 101.1(c) (Appearance Pro Hac Vice; Local Counsel) ("Any member in good standing of the bar of any court of the United States or of the highest court of any state, who is not under suspension or disbarrment by any court and is ineligible for admission to the bar of this Court under L. Civ. R. 101.1(b), may in the discretion of the Court, on motion, be permitted to appear and participate in a particular case.")

Admission pro hac vice is a privilege, not a right, and the decision to admit out-of-state counsel for a particular case is in the sound discretion of the court. See Leis v. Flynt, 439 U.S. 438, 442, 99 S.Ct. 698 (1979) (admission pro hac vice "is not a right granted either by statute or the Constitution"); Cooper v. Hutchinson, 184 F.2d 119, 122 (3d Cir. 1950) ("It has always been thought that the license to practice law is limited, except as a matter of grace, to persons who had fulfilled the local requirements for practice."); Thoma v. A.H. Robins Co., 100 F.R.D. 344, 348 (D.N.J. 1983). It may be revoked for improper or unethical conduct. See, e.g., Johnson v. Trueblood, 629 F.2d 302, 304 (3d Cir. 1980); Data Systems Analysts, Inc. v. Netplex Group, 187 F.R.D. 181 (D.N.J. 1999); Eagan v. Jackson, 855 F. Supp. 765 (E.D. Pa. 1994).

Plaintiffs' counsel argues that revocation of pro hac vice admission is the functional equivalent of disbarrment and can only be imposed for serious ethical violations that would justify disbarrment of a New Jersey licensed attorney. They argue that pro hac vice admission has never before been revoked for misconduct which is merely discourteous or uncivil and that, therefore, Mr. Green could not have been on notice that his deposition conduct could lead to his removal from the case. Revocation under these circumstances, they argue, would violate fundamental principles of due process.

Contrary to plaintiffs' counsel's contention, the Third Circuit has not treated revocation of pro hac vice admission as the functional equivalent of disbarrment. Plaintiffs' counsel cite a number of cases from other jurisdictions for their proposition. The standards for pro hac vice admission and revocation, however, vary widely among jurisdictions. Not only do the cited cases from other jurisdictions have very little precedential value to this court, but most of them do not set out the standard as clearly as plaintiffs' counsel claim they do. *fn11

An examination of Third Circuit law and the Local Rules of this District indicates that in this court, pro hac vice admission may be revoked for misconduct that falls short of that which would warrant disbarrment. For example, Local Civil Rule 101.1(d) provides that pro hac vice admission may be revoked merely for an attorney's failure to abide by scheduled court dates. *fn12 In Johnson v. Trueblood, the Third Circuit's most comprehensive discussion of pro hac vice revocation, nowhere does the court hold that pro hac vice may only be revoked for ethical misconduct that would justify disbarrment. In fact, the court found that "[a]t a minimum, a violation of any disciplinary standard applicable to members of the bar of this court would justify revocation of pro hac vice status." 629 F.2d at 304. The court left "open the question whether different cases require different standards." Id. See also Data Systems Analysts, Inc. v. Netplex Group, Inc., 187 F.R.D. at 183 ("Revocation of pro hac vice admission is a recognized sanction for violation of court orders or disciplinary rules.").

While attorneys admitted pro hac vice are subject to the same rights, duties and standards as are members of the bar, the sanctions for attorney misconduct need not be, and are not, identical for both pro hac vice attorneys and members of the bar. There are significant considerations attending the nature of pro hac vice practice that bear upon a court's choice of sanction. The disciplinary actions that this court can take against an errant New Jersey attorney may have a significant effect upon the attorney's license to practice law, including suspension, disqualification, or disbarrment. This court has no such authority over an out-of-state attorney's license, its only options in that regard being a referral to the disciplinary board of the state in which that attorney practices and/or the revocation of the attorney's pro hac vice admission. In addition, the same incentives may not exist for New Jersey bar members and out-of-state attorneys to maintain a consistent level of respect and decorum out of concern for their reputation in this jurisdiction. See Johnson v. Trueblood, 629 F.2d at 304. These differences in the nature of practice indicate that pro hac vice revocation is but one of the disciplinary sanctions available to a court, even if the same misconduct would not result in the disbarrment of a New Jersey attorney.

C. Pro Hac Vice Revocation: Due Process

Procedurally, a court considering revocation of an attorney's pro hac vice admission must give the attorney "a meaningful opportunity to respond to identified charges." Johnson v. Trueblood, 629 F.2d at 304. Notice should consist of two things: "the conduct of the attorney that is the subject of the inquiry, and the specific reason this conduct may justify revocation." Id. A court must also give written reasons for any revocation. Id.

It is true that Johnson v. Trueblood did not go so far as to set forth an encompassing standard that governs the revocation of pro hac vice admission in all civil cases. However, the guidance that it did provide is sufficient to enable this court to conclude, as it does, that Mr. Green's misconduct during the depositions in this case violated the established standards of civility and professionalism embodied in Rule 3.2 of the Rules of Professional Conduct and calls for the revocation of his pro hac vice admission. The court also finds, as discussed below, that Mr. Green was sufficiently put on notice of the conduct that is the basis of this motion and the standards by which his conduct is judged.

1. Rule of Professional Conduct 3.2: Courtesy and Consideration

Rule 3.2 provides: "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client and shall treat with courtesy and consideration all persons involved in the legal process." Plaintiffs' counsel argues that RPC 3.2 is merely aspirational, citing Baxt v. Liloia, 155 N.J. 190, 714 A.2d 271 (1998), and has never been used as a basis for the sanction of revocation.

The New Jersey Supreme Court in Baxt v. Liloia, 155 N.J. 190, 714 A.2d 271 (1998), explained that the Rules of Professional Conduct, including RPC 3.2, are not "merely aspirational," but are established canons setting forth the minimum level of competency which must be displayed by all attorneys and which serve as the standard by which lawyers may be disciplined. 155 N.J. at 197-204. *fn13 Indeed, the court specifically remarked that "[t]he concept of professionalism embodied in RPC 3.2 lies at the core of what it means to be a good lawyer." 155 N.J. at 203. The court emphasized that New Jersey's disciplinary system was "one of the most demanding disciplinary systems in the nation," noting that:

Chief Justice Wilentz wrote, almost twenty years ago, "that the principal reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general." In re Wilson, 81 N.J. 451, 456, 409 A.2d 1153 (1979). He believed that "public confidence in this Court and in the bar as a whole requires the strictest discipline." Id. at 461, 409 A.2d 1153. His message remains powerful today. 155 N.J. at 203-04.

In In re Lester T. Vincenti, 114 N.J. 275, 554 A.2d 470 (1989), in sanctioning an attorney for violations of RPC 3.2 and 8.4(d) (declaring it unprofessional for a lawyer to "engage in conduct that is prejudicial to the administration of justice"), for, inter alia, using loud, abrasive, and profane language against his adversary and an opposing witness, the Court explained the import of the requirement of professionalism and courtesy:

This conduct violates RPC 3.2 and 8.4(d). Respondent's conduct is intolerable because it has an effect that tends to undermine the proper administration of justice. Conduct calculated to intimidate and distract those who, though in an adversarial position, have independent responsibilities and important roles in the effective administration of justice cannot be countenanced. . . . There cannot be genuine respect of the adversary system without respect for the adversary, and disrespect for the adversary system bespeaks disrespect for the court and the proper administration of justice.

These considerations have importuned us to stress repeatedly that attorneys are required to act with common courtesy and civility at all times in their dealings with those concerned with the legal process. Should an attorney fail to abide by these requirements, discipline should be imposed. 114 N.J. at 281-82 (emphasis added).

It is evident that New Jersey courts treat their disciplinary rule RPC 3.2 and the civility and professionalism of lawyers which it addresses as more than just aspirational. Sanctions based upon violations of RPC 3.2 are certainly not unprecedented. See, e.g., In re Lester T. Vincenti, supra (suspending attorney for three months); In re Joseph F. Flayer, 154 N.J. 2, 710 A.2d 1008 (1998) (suspending attorney for six months for misconduct violating various RPCs, including RPC 3.2); In re Udit Steven Sharma, 150 N.J. 205, 696 A.2d 12 (1997) (suspending attorney for one year for, inter alia, violation of RPC 3.2); In re Edward J. Gaffney, 138 N.J. 85, 648 A.2d 723 (1994) (suspension for two and one-half years for same); Kramer v. Tribe, 156 F.R.D. 96 (D.N.J. 1994) (dismissing complaint based on misconduct of attorney, including violation of RPC 3.2); Cannon v. Cherry Hill Toyota, 190 F.R.D. 147 (D.N.J. 1999) (explaining that sanctions may be imposed for conduct that violates, inter alia, RPC 3.2).

To say that Mr. Green was unaware that a violation of RPC 3.2 could lead to the imposition of sanctions is unsupportable. His conduct during the depositions, as laid out below, decidedly crosses over the line from zealous advocacy to abusive, boorish, and disrespectful behavior that obstructs the administration of justice and disserves his profession and the interests of his clients. This court does not accept Mr. Green's assertion that he had no reason to know that his behavior was unacceptable. His performance offends common principles of decency and courtesy. As a practicing lawyer for almost thirty years, Mr. Green must have knowledge of the basic practices of legal and professional decorum. In Hall v. Clifton, 150 F.R.D. 525 (E.D. Pa. 1993), the court explained why it was so important for lawyers to conduct themselves professionally during depositions:

[D]epositions are to be limited to what they were and are intended to be: question-and-answer sessions between a lawyer and a witness aimed at uncovering the facts in a lawsuit. When a deposition becomes something other than that because of the strategic interruptions, suggestions, statements, and arguments of counsel, it not only becomes unnecessarily long, but it ceases to serve the purpose of the Federal Rules of Civil Procedure: to find and fix the truth.

Depositions are the factual battleground where the vast majority of litigation actually takes place. . . . The pretrial tail now wags the trial dog. Thus, it is particularly important that this discovery device not be abused. Counsel should never forget that even though the deposition may be taking place far from a real courtroom, with no black-robed overseer peering down upon them, as long as the deposition is conducted under the caption of this court and proceeding under the authority of the rules of this court, counsel are operating as officers of this court. They should comport themselves accordingly . . . 150 F.R.D. at 531 (citations omitted). This court finds it hard to believe that Mr. Green would be unaware of this well-publicized opinion issued by the late Judge Gawthrop in the Eastern District of Pennsylvania, the jurisdiction in which Mr. Green primarily practices.

Moreover, Mr. Green admitted that he was familiar with the Guidelines for Litigation Conduct adopted by this court, which his conduct clearly violated. *fn14 Although these Guidelines are aspirational and may not be the basis for sanctions, they put a lawyer on notice of what kinds of behavior may otherwise violate the Rules of Professional Conduct and other disciplinary rules. See L. Civ. R. 103.1, comment 4 ("[C]onduct that violates the Guidelines will also often violate a standard of conduct sanctionable under . . . the disciplinary rules."). Most importantly, Mr. Green was put on notice by Judge ...


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