Ruling Faults Lack of Civility in Remarks at Deposition
Note: A deposition is an oral question and answer session where one side asks the other side questions about its position in a lawsuit. It is a common procedure in most civil (non-criminal) litigation.
A NEW YORK judge has ordered court supervision of a lawyer for "objectionable conduct" toward a female opposing counsel who he said had a "cute little thing going on" during a deposition.
According to transcripts of the deposition, Thomas B. Decea of Danzig Fishman & Decea in White Plains also called Michelle A. Rice of Arkin Kaplan & Rice "hon" and "girl" and asked her why she was not wearing a wedding ring.
Manhattan Supreme Court Justice Carol Edmead ruled last week that a special referee would oversee all future depositions in the case to monitor Mr. Decea's conduct and that all depositions would take place in the courthouse.
The judge said Mr. Decea's behavior reflected gender bias as well as "a lack of civility, good manners and common courtesy." She said the appointment of a referee was a means of "guarding against future objectionable conduct" by Mr. Decea.
Ms. Rice moved for the appointment of a special referee a few days after the end of the depositions, arguing that Mr. Decea's conduct was intended to intimidate her and interfere with her advocacy in violation of New York's Code of Professional Responsibility as well as court rules adopted last year proscribing obstructive behavior at depositions (NYLJ, July 26, 2006).
Mr. Decea had opposed the motion on the grounds that he was "not aware of any rule or law which requires civility between counsel." The judge described his contention as "baffling."
She also noted that a number of judges had in the past been publicly reprimanded for referring to female lawyers as "little girl" or "young girl." She pointed out that the Commission on Judicial Conduct had said such words were "calculated to demean the lawyer."
Though the judge pointed out that conduct like that of Mr. Decea had been found sanctionable in the past, Ms. Rice did not seek sanctions against Mr. Decea. "We felt the most measured response to his inappropriate behavior was supervision of his behavior going forward," she said yesterday.
Commentary: Mr. Decea is lucky that his adversary did not ask for monetary sanctions, his conduct was outrageous enough that the judge might have granted them. As it is, he will likely have to pay the cost of the referee, a lawyer or retired judge who will likely charge a healthy hourly fee. What he really needs is a good lesson in manners, and perhaps a spanking by his mother.
Mr. Decea is lucky that his adversary did not ask for monetary sanctions, his conduct was outrageous enough that the judge might have granted them. As it is, he will likely have to pay the cost of the referee, a lawyer or retired judge who will likely charge a healthy hourly fee. What he really needs is a good lesson in manners, and perhaps a spanking by his mother.From: Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx)
