LAWYERS SUSPENDED FOR BAD BEHAVIOR: A Lack of Professionalism and Composure during Depositions
By Josh Rogers and John M. Phillips
Lawyers are a different breed of person. Where most individuals avoid confrontation and argumentative situations, lawyers run to it. Most are born with this trait, and for others, the ‘Art of Arguing’ is beat into them during law school. Regardless, lawyers love to compete; and moreover, they love to win! So, when you get two type-A opposing lawyers in a room together, the resulting fireworks of debate can be awe-inspiring. However, there is a line to be crossed, and many colorful lawyers cross that line and become subject to sanctions by the Bar. The back-and-forth debate between two opposing lawyers is pretty limited in the courtroom environment. The really juicy stuff happens during pretrial depositions. Depositions are a chance for lawyers to get statements from witnesses under oath for use as evidence during trial. Essentially, you have two opposing “teams” (i.e. lawyers and witnesses) that face off on a field of legal battle.
One team is trying to get useful information out of the other team’s witness, and the other team is trying to protect their client’s interests. Usually, pretty dry stuff; but some lawyers have adopted the ‘NFL trash-talking’ approach to depositions. When the tape recorder is rolling, depositions are on the up and up. However, it is usually when the recorder is off, during breaks and after the deposition, that the tempers flare. For example, in Florida Bar v. Martocci, 699 So. 2d 1357 (Fla. 1997), the following took place: “After leaving the [deposition], respondent approached [opposing counsel] from the rear, put his hand on his shoulder, and said to him, ‘F___ you.’ [opposing counsel] replied, “I’m sorry, what did you say?” Respondent then called [opposing counsel] ‘A___hole.’” Although not disciplined in that case, the same lawyer was sanctioned for harassing a witness in a following case by calling her “crazy” and “a nut case”, as well as sticking his tongue out at both the witness and opposing counsel, during and following depositions. Florida Bar v. Martocci, 791 So. 2d 1074 (Fla. 2001). For that episode, Martocci received a 2-year suspension for practicing law in the state of Florida. The moral to the story is that lawyers are held to higher standards and should never act unprofessionally within the legal arena. Lawyers are officers of the law; accordingly, lawyers should not let their competitive, type-A emotions get the best of them; especially not to the point where unprofessional conduct escalates to the level of flat-out witness intimidation.
If you, a family member, or a love one has been intimidated during a legal deposition, please report the incident to the Florida Bar directly at 1-850-561-5600.
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