Watch those “F-Bombs” during sworn testimony, folks. Court-ordered sanctions are certain to follow.
Editor’s comment: It is hard to argue with this ruling and we point out all Illinois lawyers are being asked to take professional responsibility CLE courses that address civility in all proceedings. A federal judge in Philadelphia has refused to reconsider substantial sanctions imposed on a Chicago lawyer for failing to rein in a foul-mouthed client during a deposition.
In a decision in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo Robreno imposed sanctions of more than $29,000 on attorney Joseph R. Ziccardi of Chicago and his client whose alleged misconduct included dropping 73 “F bombs” during his deposition. Judge Robreno found the client who is the chief executive officer of Defendant HTFC, engaged in “hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony.” The record indicates the client dropped an “F-Bomb” or variations of it 73 times during the deposition, Judge Robreno noted the video showed his lawyer at one point “snickered” at his client’s conduct. Throughout the deposition, Judge Robreno said, the client “sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity.” The attorney was also to blame, Judge Robreno found, because he failed to stop his client’s tirades and persuade him to definitively answer questions.
Soon after, Ziccardi moved to withdraw as counsel. Ziccardi hired a different attorney to represent him in seeking to have the sanctions lifted. In his motion for reconsideration of sanctions, Ziccardi argued he was deprived of his right to due process because Judge Robreno failed to put Ziccardi on notice “as to the particular tool that the court was considering employing to sanction him.” And since the notice was deficient, Ziccardi argued, his “opportunity to be heard was meaningless.” The evidence, Ziccardi argued, shows he never joined in his client’s offensive conduct “by chuckling or otherwise.”
In a footnote in his February opinion, Judge Robreno said the video showed Ziccardi “chuckling at the client’s abusive behavior” and GMAC’s lawyer commented on the record “your snickering, counsel, is not appropriate either because all you’re doing is encouraging the behavior of your client.”
Judge Robreno rejected all of Ziccardi’s arguments, finding the technical flaw claimed by Ziccardi did not amount to a violation of the lawyer’s due process rights and none of the factual issues would change the judge’s mind. Judge Robreno found Ziccardi “allowed the deposition to drag on for over two days and nearly 12 hours of testimony, much of which was an unmitigated waste of time and resources,” and that he “never once suggested that the ill-fated deposition be adjourned.” As a result, Judge Robreno concluded “although courts would be wise to hesitate in close cases before second-guessing an attorney’s judgment as to when a deposition should be terminated, no such pause is warranted here.”
The decision to appeal the sanctions remains pending. It is difficult to imagine the cost of the appeal would match the chances of reversal.
