Court Requires CA Attorneys to be Civil

AttorneyArgues

“And do as adversaries do in law — strive mightily but eat and drink as friends.”  – William Shakespeare, The Taming of the Shrew.

It has been a long time (400 years?) since lawyers were held up as the poster children for civility. Rambo tactics and scorched earth strategies can be seen in courtrooms around the country. As a result, surveys show that respect for the legal profession has plummeted and almost everyone associated with the practice of law is miserable.

But that may be changing.

The California Supreme Court recently became one of a half-dozen states to require that new lawyers promise to play nice. Starting May 23, new lawyers must take a pledge to be admitted to the California bar in which they promise to strive to conduct themselves “at all times with dignity, courtesy, and integrity.” A civility provision also has been incorporated into attorney oaths in South Carolina, Utah, New Mexico, Florida and Arkansas.

The California initiative is part of a movement called “Civility Matters” that was started about five years ago by the American Board of Trial Advocates (ABOTA), which requires its members to treat everyone – opponents, witnesses and judges – with dignity and respect.

The entire California oath for new attorneys is now:  “I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

By including a civility clause, the state Supreme Court effectively empowers itself to withdraw its permission for an offensive attorney to continue to practice law in that state. It remains to be seen, of course, how the Court will choose to enforce the rule.

Nadir of Professionalism?

A few decades ago, the bar began to change with the unchecked proliferation of law schools churning out attorneys who were forced to hustle for work and who, sometimes, pursued victory at all costs.

In 2009, U.S. District Judge Gene Ellen K. Pratter documented the decline in attorney professionalism in a Pennsylvania case brought by a school custodian who alleged race discrimination and retaliation . Higgins v. Coatsville Area Sch. Dist., No. 07-4917, slip op. at 10 (E. D. Pa. Sept. 16, 2009) (mem. op.).

Judge Pratter observed that the lawyers in the case, Lewis Hannah and James E. Ellison,  “crossed the line between appropriately aggressive advocacy and unrestrained, pointless offensive name-calling” during a deposition of a school official identified as Dr. Walker.  She quotes from a transcript of the deposition:

“For instance, when Defendants’ counsel, Mr. Ellison, objected to a question posed by [plaintiff’s counsel] Mr. Hannah  to Dr. Walker, Mr Hannah responded, “Shut up. You are such an a-hole.” Mr. Ellison’s rejoinder was, “Next question. Dr. Walker, [Mr. Hannah]’s off his meds today. Pay no attention to that.”

Judge Pratter said both attorneys were at fault but that Hannah “racheted the acrimony higher and the standards lower, using a few choice epithets for Mr. Ellison, by angrily referring to defense counsel at least four times as, among other things, a certain unattractive end-piece of anatomy.”

At one point, Judge Pratter said, Hannah called Ellison “boy” – both Hannah and Ellison are African-Americans. Pratter noted that one of the allegations brought by Hannah’s client, also an African-American, was that Dr. Walker allegedly called him “boy.”   Ellison and Dr. Walker walked out of the deposition and Ellison sought sanctions against Hannah.

“Treating an adversary with advertent discourtesy, let alone with calumny or derision, rends the fabric of the law,” observed Judge Pratter.

She required Hannah to attend a continuing legal education course dealing with civility and professionalism. In an apparent reference to the Shakespeare’s quotation above, the judge also required both counsel to meet together “for an informal meal in an effort to facilitate the repair of their professional relationship” and then report back to the court.

Judge Pratter referred to various rules of professionalism adopted by Pennsylvania  bar associations. “Perhaps the adversaries in this case can be reinspired to achieve the Shakespearean vision and the aspirational goals of the very rules of professional conduct by which counsel have pledged to abide, wrote Judge Pratter.

Rutgers’ “Independent” Investigation

RutgersOne wonders how an “independent” investigation could support a finding that Rutgers bullying basketball coach Mike Rice should remain on the university payroll?

Rice was forced to resign recently after a videotape was leaked to the public and showed him verbally and physically  abusing players, while using homophobic slurs.

 In his letter of resignation letter to Rutger’s President Robert L. Barchi, Athletic Director Tim Pernetti writes:

 “As you know, my first instincts when I saw the videotape of Coach Rice’s behavior was to fire him immediately. However, Rutgers decided to follow a process involving university lawyers, human resources professionals and outside counsel. Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.”

Corporate Counsel  reports that the outside counsel, Attorney John Lacey, an attorney with Connell Foley of Roseland, NJ,  issued a report in January stating that Rice could not be fired “for cause.” because there was no clear violation of his employment contract.

  Lacey found that Rice was extremely demanding of his assistant coaches and players but that his behavior did not constitute “a ‘hostile work environment’ as that term is understood under Rutgers’ anti-discrimination policies.”  Lacy said  the “intensity” of Rice’s misconduct may have breached provisions in his contract against embarrassing the school but, as Rutgers officials conveniently point out, did not recommend termination. 

The conclusion of the so-called independent investigation once again raises questions about these so-called  independent investigations.

 Increasingly,  employers hire  outside parties to “investigate” claims of workplace abuse.  There  often is  an unstated expectation that the result  of the investigation will affirm the employer’s goal of retaining the valued bully while insulating the employer from a potential lawsuit if the less valued target files a lawsuit. Too often the so-called independent investigators are attorneys who place themselves in the position of appearing to be for sale to the highest bidder.

 The videotape is so shocking that it defies reason that any “independent” investigator could reasonably  conclude that Rice’s behavior did not justify dismissal. In fact, some of the basketball  players could have filed criminal assault complaints against Rice for physically manhandling them. Instead of dismissing Rice, Rutgers fined him $50,000 and suspended him for three games in December.

 Just as in the Penn State scandal involving  pedophile football assistant coach Jerry Sandusky, Rutgers appears to have tolerated Rice’s bad behavior.

After the videotape was leaked, the dominos began to fall. Rice was fired.  Assistant Coach Jeremy Martelli, Rutger’s General Counsel John Wolf, and Pernetti resigned.  If I were Barchi, I wouldn’t make plans to redecorate the Presidential suite.  Barchi’s  claim that he never took the time to watch the videotape.until it was made public was met with obvious disdain at a press conference. Barchi blamed his bad decision on a “failure of process.”

Here is what needs to happen so that employers will take workplace bullying seriously – managers  need to be held accountable.  

These student athletes are essentially workers who are paid in the form of scholarship assistance by the university.  Like any other worker, they know that  a complaint can result in retaliation and their termination.  These players  relied upon their unofficial employer, Rutgers, to insure they were treated with dignity and respect and certainly not subjected to emotional and p physical abuse.

 Most of the players just put up with Rice’s abuse. However, according to news reports, at least three players transferred from the program as a result of Rice’s abuse.

           

           

When the Employer is the Bully

EEOC

One of the most difficult workplace bullying scenarios occurs  when the employer is the bully.

There may be no one to complain to except the harasser.

This scenario occurred to three former employees of a Baltimore medical practice who were subjected to sexual harassment  by two of the company’s highest ranking officials.  They complained to the U.S. Equal Employment Opportunity Commission  (EEOC ), which announced Tuesday that a federal jury had awarded the women $350,000 in damages.

The EEOC filed the lawsuit on behalf of the women against Endoscopic Microsurgery, alleging that Associate’s Chief Executive Officer, Dr. Mark D. Noar, M.D., and  its Chief Financial Officer Martin Virga subjected the women to frequent unwanted sexual comments, physically touching and grabbing a female worker’s rear end, kissing and blowing on female employees’ necks and other sexually egregious comments and touching.

According to the EEOC, after Linda Luz, a receptionist, rejected their advances, the medical practice began retaliating against her by issuing unwarranted discipline, rescinding approved leave, and eventually firing her.

Administrator Jacqueline Huskins also experienced unwanted sexual advances from Noar and Virga, as did nurse Kimberly Hutchinson from Noar.

The Baltimore jury of nine returned a unanimous verdict for the plaintiffs and awarded each woman punitive damages of $110,000. The jury also held the claimants were entitled to compensatory damages in amounts ranging from $4,000 to $10,000.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964.

It says something about this employer that it failed to negotiate a settlement in this case when it had the opportunity to do so. The EEOC filed suit after attempting unsuccessfully to reach a pre-litigation settlement through its conciliation process. Publicity from this fiasco is not likely to encourage new patients to flock to the clinic, nor is it likely to encourage confidence in these medical professionals from existing patients. Duh.

“This verdict is significant because it reminds high-level officials who function as the employer that their high level does not give them license to abuse women – they must treat employees as professionals,” said Debra Lawrence, regional attorney of the EEOC’s Philadelphia District Office.

 

I Will Ruin … Who?

fisticuffs

NOTE:  State College of Florida President Lars Hafner subsequently  resigned on Oct. 30, 2012 with a $363,000 settlement agreement.  The board  voted 7-0 in January 2013 to hire a new president,   Dr. Carol Probstfeld,  formerly vice president for business and administrative services at the college.  Carlos Beruff, a realtor, remains on the board.  Sigh.

Go quietly or I will ruin you

That alleged threat is at the heart of what promises to be a costly battle between two titans at State College of Florida (SCF) in Manatee-Sarasota.

The Bradenton Herald reports that the college’s board of trustees voted  5-2 this week to ask Florida’s Attorney General to investigate an allegation of forgery against SCF President Lars Hafner.

Hafner says the vote stems from a campaign of bullying by SCF board chairperson Carlos Beruff.  He recounted a private conversation with Beruff about nine months ago in which Beruff allegedly told Hafner, “If you don’t go quietly, I’m going to ruin you and ruin your reputation.”

Beruff has accused Hafner of forging former board president Steve Harner’s name on a 2010 state grant application for SCF’s Collegiate School charter school. Hafner contends he signed Harner’s to the document with Harner’s permission.

Hafner accused Beruff of risking the college’s reputation for the sake of what Hafner called Beruff’s personal and political agenda against him.

“This has been nine months of, basically, a witch hunt, and of you bullying me,” Hafner said to Beruff. “You’ve been doing it in private so other board members were not aware of what you’re saying or doing.”

At a special board meeting called by Beruff , Beruff presented an affidavit from attorney Greg Porges, whom Beruff had hired privately to research the forgery question, in which Porges said Harner did not authorize Hafner to sign the grant application in his stead.

Hafner presented an affidavit directly from former president Harner, in which Harner stated he believed that in up to four instances he had authorized Hafner to sign his name on Harner’s behalf and with Harner’s “direction and instruction.”

Meanwhile, board member Jennifer Saslaw, one of two board members to vote against taking the case to the attorney general, said Harner told her that Hafner’s signature on the application was made with Harner’s approval.

Joe Miller, the other board member to vote against involving the attorney general, questioned whether Beruff was attacking Hafner at the behest of Gov. Rick Scott, whose has proposed eliminating tenure for university employees and cutting the pay of university and college presidents.

Judge Ed Nicholas, a member of the SCF Foundation, accused the SCF board of “destroying the morale of this school” and driving away donors.  “Ever since you’ve been chairman, you’ve done nothing but attack this college or attack the staff,” Miller said. “I’m not sure who’s running things, the governor or this board.”

Hafner also said he was exploring whether Beruff violated state statutes by sharing information about Hafner’s evaluation.

One can’t help but wonder whether at any point the above officials considered other options to settle their difference? Say, mediation?  Counseling about the proper role of the administration versus the board? A duel?

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