Legal Malpractice

When is an Attorney Responsible for his Client's Behavior

By (Andrew Lavoott Bluestone)

Depositions in New York used to be a variant of the Wild West rodeo.  Bucking broncos, trying to stay up on the horse, pick your metaphor.  New attorneys soon learned the usual tricks, "I'll take that under advisement", "I direct the witness not to answer" and all that.  With Administrative orders things have changed here.  Ever have a really really bad deposition experience?

A gross example of bad deposition behavior is found here  Of interest is the fact that attorney Ziccardi is being sanctioned along with his client.  We won't repeat the vulgarities here, but read the entire story for a look at a bad situation.

"A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in.

In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

Robreno noted that Wider used the "F word" or variations of it 73 times during the deposition and that the video shows that his lawyer, Joseph R. Ziccardi of Chicago, at one point "snickered" at his client's conduct.

"In the final section of the opinion, Robreno explained why Ziccardi, too, must be sanctioned for Wider's misconduct.

"Throughout the deposition, notwithstanding the severe and repeated nature of Wider's misconduct, Ziccardi persistently failed to intercede and correct Wider's violations of the Federal Rules," Robreno wrote.

"Instead, Ziccardi sat idly by as a mere spectator to Wider's abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in Wider's offensive conduct," Robreno wrote.

In a footnote, Robreno said the video showed Ziccardi "chuckling at Wider's abusive behavior" and Bodzin's comment that "'your snickering counsel is not appropriate either, because all you're doing is encouraging the behavior of your client.'"

In court papers, Ziccardi argued that he believed he had tried to curb his client's behavior, but that most of his efforts to do so occurred off the record. "

Full post as published by New York Attorney Malpractice Blog on March 06, 2008 (boomark / email).