We've all seen Michael Avenatti interviewed on TV, especially during his Stormy Daniels heyday. Prepared, articulate, and always on the attack. We also always felt, from listening to him, that Avenatti indeed had “the goods”—and he usually did. Anyone other than the steel-belted president would have been squirming, just listening to the chilling provocateur who would sooner or later be taking his deposition armed with (what a litigating friend of mine would refer to as) “the venereal material”—that is, the invasively personal evidence that would unquestionably bury his opponent or force him to settle big time.

Just observing him, the viewer might easily imagine what, it seemed, Avenatti might say to his adversary when in the process of trying to arm wrestle him into submission with a hefty settlement agreement—that is, when the doors were closed and klieg lights weren't on. Now, lawyers don't typically gain the disapprobation of discipline regulators when they edge toward the line by trash-talking their adversaries. A lawyer who gets graphic in the public square will often not be disciplined, even if they go so far as to sound like WWE wrestlers before a match.

Put aside the (alleged) criminally extortionate nature of Avenatti's threats to Nike's lawyers, he specifically said, according to the indictment:

I'm not f-cking around with this, and I'm not continuing to play games … you guys now know enough now to know you that you've got a serious problem. And it's worth more in exposure to me to just blow the lid on this thing. A few million dollars doesn't move the needle for me. I'm just being really frank with you. So if that's what's [] being contemplated [not the millions Avenatti was looking for, mostly for himself] … I'll proceed with my press conference tomorrow. … I'll go and I'll take ten billion dollars off your client's market cap …. But I'm not f-cking around.

Clearly, Avenatti's “F-bombs” aren't the main issue—he has dramatic criminal exposure that may land him in jail and result in his automatic disbarment. And clearly, the lawyers representing Nike who had been wired up by the FBI were hardly intimidated by his conduct or language. And maybe that will be Avenatti's defense. But can every lawyer who is referred to the disciplinary authorities defend himself by arguing: “My conduct wasn't designed to intimidate. I'm just a foul mouth”?

Now, the author himself is admittedly a foul mouth and, I suppose, uses such language in settlement discussions. So I'm not suggesting that using coarse language alone is enough, but it's the tenor and context of the remarks that might cause the disciplinary rules or court sanctions to kick in.

The Rules

Many of the cases concerning aggressive, or abusive behavior toward counsel arise in the civil context, although the results would seem to be the same. In the criminal realm, prosecutors are ethically bound to “develop and maintain courteous and civil working relationships with judges and defense counsel, and should cooperate with them in developing solutions to address ethical, scheduling, or other issues that may arise in particular cases or generally in the criminal justice system.” ABA Criminal Justice Standards: Prosecution Function 3-3.3(d); see Defense Function 4-7.2(a) for its requirements of courtesy and professionalism toward opposing counsel.

Those words are aspirational, but they don't provide much in the way of guidance for the practitioner. Most lawyers who straddle both civil and criminal practice, and judges who preside over both, generally recognize that, for one reason or another, criminal adversaries are typically more civil to one another. Maybe it's because prosecutors represent the government and more is expected of them by the judiciary or the chief prosecutor who employs them, or maybe it's because defense lawyers have a client's veritable freedom in their hands and are accordingly reluctant to enrage their adversaries. Whatever the reason, though, the rules of engagement and disciplinary consequences for offensive conduct by attorneys to one another should be the same for litigators in both the civil and criminal disciplines.

When courts turn to the NY Rules of Professional Conduct and ABA Model Rules of Professional Conduct, the primary bases for discipline are often the “catch-alls,” i.e., NY Rule 8.4 (d) (a lawyer shall not “engage in conduct that is prejudicial to the administration of justice”) or 8.4(h) (a lawyer shall not “engage in any other conduct that adversely reflects on the lawyer's fitness as a lawyer.”) See ABA Rule 8.4. Under the heading of Conduct Before a Tribunal, a lawyer “should not make unfair or derogatory personal reference to opposing counsel.” (NY Rule 3.3, cmt 13; cf. ABA Rules 3.3 and 3.4).

While not binding, the New York State Standards of Civility, 22 N.Y.C.R.R. 1200, App. A, are guidelines intended to encourage lawyers and others to “observe principles of civility and decorum”. They direct that lawyers should be courteous, respectful and cooperative and remind us that we can “disagree without being disagreeable.” See generally Federal Bar Association Standards for Civility in Professional Conduct (1998); ABA Litigation Section Guidelines for Conduct (“We will treat all other counsel … in a civil and courteous manner.”)

Disciplinary Matters

Adam Leitman Bailey was recently suspended for four months by the First Department. His conduct involved two incidents. In the first, Bailey walked into an arbitration in which his firm was representing a party, took photos with his phone and said, in essence, “This will be in the newspaper when I put this in there after we kick your asses.” In the second, Bailey represented a landlord. When texting with and then speaking with a tenant who had posted material about Bailey's client on a website, Bailey said things like: “we have a copy of the [police] complaint your ex-girlfriend filed;” you “should commit suicide;” Bailey's employee “used to run the District Attorney's office” and would “run an investigation” about the tenant; and finally, “you have no idea what you stepped into … Welcome to my world. Now you're my bitch.”

As it happens, this was not the first time Bailey had been before the Committee. In two earlier matters he engaged in “excessively aggressive behavior while representing a client …” Accordingly, the First Department directed a four- month suspension, coupled with counseling monitored by the New York City Bar's Lawyer Assistance Program. Matter of Bailey, __ A.D.3d ___, 2019 NY Slip Op. 02487.

A different attorney Bailey—Mark Kendall Bailey, in Oklahoma—currently faces disciplinary charges after he brought a damp, feces-stained check to the bar association and directed that it be hand-delivered to the Assistant General Counsel who handled an underlying fee dispute between Bailey and a former client. State of Oklahoma ex rel. Oklahoma Bar Association v. Mark Kendall Bailey, Sup. Ct., SCBD 6776. Enough said.

The First Department rejected a recommendation for a three-month suspension, and found six months more appropriate, where an attorney engaged in a pattern of misconduct involving sexually-oriented comments aimed at women attorneys. Matter of Robert A. Kahn, 16 A.D.3d 7 (1st Dept. 2005). Another attorney was suspended for three months (despite a referee's recommendation of one month) and was required to take anger management classes as a result of having made “patently offensive racial, ethnic, homophobic, sexist and other derogatory remarks to attorneys.” Matter of Eamon Teague, 131 A.D.3d 268 (1st Dept. 2015). In Matter of Schiff, 190 A.D.2d 293 (1st Dept. 1993), a public censure was imposed where counsel made vulgar, obscene and sexist remarks about opposing (female) counsel's anatomy. Finally, where an attorney made insulting and unsupported allegations in court papers and failed “to present any rational justification for his remarks attempting to link his opposing counsel to organized crime,” a public censure was issued. Matter of Kavanaugh, 189 A.D.2d 521 (1st Dept. 1993).

On the federal side, it is hard to synthesize the extensive allegations in Revson v. Cinque & Cinque, PC, 70 F. Supp. 2d 415 (S.D.N.Y. 1999) rev'd 221 F. 3d 71 (2d Cir. 2000). Counsel for Revson in a fee dispute (Cinque previously represented Revson) among other things: threatened to tarnish Cinque's reputation with the “legal equivalent of a proctology exam;” publicly accused Cinque of fraud and fraudulent billing without evidence; threatened to interfere with Cinque's clients; threatened to seek discovery of Cinque's personal finances; and stated that Cinque was an example of “why lawyers are sometimes referred to as snakes.” The District Court sanctioned counsel, Judd Burstein, $50,000. The Second Circuit found the reference to a proctology exam “offensive” distinctly lacking in grace and civility” and “repugnant,” but reversed the sanction, partly on First Amendment grounds and partly because the applicable statute (19 U.S.C. § 1927) did not permit the sanction. Even though the sanction was reversed—not intending here to be preachy—in terrorem language is puerile, adds no value and should probably be left on the litigator's cutting room floor. Indeed, who would want a public dress down by a court, for example, the Second Circuit, stating that their conduct is “repugnant”?

Conclusion

We all sometimes need to remember that “[c]ivility is not inconsistent with zealous advocacy.” Robert C. Josefberg, The Topic is Civility: You Got a Problem with That? 59 Or. St. B. Bull. 19, 19 (1999). Yet, if one looks in the mirror and sees potential for offensive lawyer-to-lawyer conduct staring back, think about the cases cited above and perhaps hit the pause button before we pull the trigger.

Joel Cohen, a former prosecutor, is senior counsel at Stroock & Stroock & Lavan. He is an adjunct professor at Fordham Law School. Dale J. Degenshein, a partner at Armstrong Teasdale, assisted in the preparation of this article.