Pandemic Prompts Focus on Attorney CivilityApril 2, 2020 | Jonathan B. Bruno |
COVID-19 has sent litigation into a tailspin, with court closings and moratoriums on filings leaving attorneys scrambling to figure out how to balance their obligations to their clients to keep cases moving with the obstacles now in place. Many attorneys are not practicing out of their offices, do not have access to key files, and may not have the assistance of their support staff.
Now, more than ever, attorneys must be mindful of another obligation – to act reasonably and civilly with opposing counsel and the Court. Courts that have remained open have already begun publicly criticizing attorneys who fail to act reasonably and professionally in light of the global pandemic. While New York State has ceased most functions, federal courts in New York and throughout the country continue to operate, and attorneys should keep their obligation to act with civility in mind.
Attorneys have an obligation to act civilly and respectfully at all times when dealing with opposing counsel and with Courts. The Preamble to the ABA Model Rules of Professional Conduct states that “[a] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” The New York Rules of Professional Conduct go further, prohibiting attorneys from engaging in “undignified or discourteous conduct” and require that attorneys comply with specific Standards of Civility. A failure to abide by these standards can lead to charges for professional misconduct, resulting in sanctions or, in extreme cases, disbarment.
Two federal court cases have resulted in scathing decisions in the last two weeks aimed at attorneys who failed to act civilly and reasonably towards opposing counsel and the Court. In C.W. v. NCL (Bahamas) Ltd., Magistrate Judge Jonathan Goodman of the Southern District of Florida slammed both parties over their inappropriate behavior regarding the scheduling of a deposition for the end of March. The defendant filed an emergency motion for a protective order, which brought the attorneys’ nasty emails back and forth to the Court’s attention. In denying the motion, and ordering the deposition would not take place as scheduled, the Court stated:
The entire world is in the midst of a pandemic. Thousands of people worldwide have contracted the Corona virus and there have been hundreds of virus-caused deaths in the United States. Millions of Americans have been ordered to remain in their homes. Millions more have lost their jobs in the past two weeks. The stock market has taken a brutal beating in the last two to three weeks. Many people are scared. Others are panicked. Everyone is unsure about the future. Cruises have been canceled and all the major airlines have severely curtailed their flights.
We are living in an unprecedented situation.
Nevertheless, the lawyers in this case have been exchanging snippy emails over the past two weeks over the scheduling of a corporate representative deposition. Moreover, defense counsel certified that this routine discovery dust-up is so important that it merits “emergency” status.
No, it doesn’t.
The Court went on to call the conduct of the attorneys “unreasonable” and advised that they would have to attend an in-person hearing in the future to explain their behavior.
A judge in the Northern District of Illinois issued a similar decision and admonishment to attorneys for wasting the Court’s time with non-emergent matters during the pandemic. In Art Ask Agency, a copyright case regarding counterfeit unicorn drawings, the plaintiff filed a motion for a Temporary Restraining Order and requested an immediate hearing. The Court, in light of COVID-19, pushed the hearing out several weeks, citing health and safety concerns. The Plaintiff filed a motion asking the Court to reconsider its scheduling order, claiming that, despite the global pandemic, it would suffer irreparable injury if the Court didn’t have the hearing that week and attempted to have the hearing scheduled on a day blocked off on the Court’s calendar. Before the Court could issue a decision, the plaintiff filed another emergency motion, in front of a designated emergency judge. Judge Steven C. Seeger issued an Order denying the plaintiff’s motion to reconsider the scheduling order, admonishing the plaintiff for wasting judicial resources when the plaintiff would suffer no real harm from a delay. The Court stated “The world is facing a real emergency. Plaintiff is not.”
However, attorneys should be mindful that the implications COVID-19 does not give them a free pass to delay their matters for no reason. In NewSpin Sports LLC v. Blast Motion Inc. et al., a patent case in the Southern District of California, the plaintiff moved this week for an extension for its claim construction deadlines, citing COVID-19 as the reason. Defendants filed a brief pushing back, claiming that the plaintiff has everything it needs to file the claim construction briefs, accusing the plaintiff of using the virus as an excuse without justification. The Court has not yet ruled on this motion.
These cases illustrate some important practice points for attorneys in the coming weeks. First, as always, attorneys must be mindful of how they treat and speak to opposing counsel, judges, and court employees. How an attorney acts during this period can have ramifications for the remainder of the case. Parties should make efforts to resolve disputes among themselves in order not to waste the Court’s limited resources. Judges will have little tolerance for petty squabbles, such as fights over scheduling or discovery deadlines. Everyone’s jobs have become more difficult and many demands that may seem justifiable in the normal course of litigation will no longer be tolerated. Moreover, attorneys have an obligation to explain these considerations to their clients and make sure clients’ expectations are realistic. Most disputes will not be considered emergencies and it may be many months before their cases receive any attention from a judge.
The last thing any attorney wants is to be on the receiving end of a public decision criticizing their lack of civility during a worldwide crisis. Attorneys should think twice before filing non-essential motions or behaving disrespectfully to opposing counsel or court personnel whether or not there is worldwide pandemic.
- Jonathan B. Bruno