Wednesday, June 04, 2008

Sanctioned Lawyer Throws Himself on the Mercy of the Court

Readers may recall the case of GMAC Bank v. HTFC Corp.

GMAC is infamous because of an opinion by E.D.Pa. Judge Robreno discussing the deposition of HTFC CEO Aaron Wider, in which Wider profanely abused plaintiff's counsel Robert Bodzin.

In his opinion, Robreno also sanctioned Wider's attorney Joseph Ziccardi for failing to restrain his client and even (allegedly) snickering at the bad conduct. Ziccardi was stripped of his pro hoc admission, fined $29,000 (equally with his client) and referred to the Bar.

Ziccardi has filed a motion for reconsideration. I found it quite persuasive. In the memorandum in support of the motion, and the reply, Ziccardi provides evidence that he didn't snicker at Wider's profane conduct but instead tried to stop it off the record.

The evidence was purportedly not submitted earlier because Ziccardi was still representing Wider and lacked notice that the Court was considering sanctioning him under the discovery rules as a co-offender. Ziccardi has provided affidavits from (among others) himself and Wider. The latter in particular is a must read. Wider falls on his sword for his former lawyer, stating that Ziccardi had repeatedly cautioned him not to act out and worked to prevent his outbursts behind the scenes. (Oddly, based on this document, I'm not sure that anyone is currently representing Wider. The affidavit is very much not in his interest, but sounds like it was a lawyer-generated document. Ziccardi's conflict is quite acute at this point, as he realizes, and I wonder how he handled that communication.)

The general thrust is that it is procedurally unfair to punish Ziccardi with such a large fine for what boils down to his client's bad conduct, and, ultimately, for merely failing to adjourn the deposition and withdraw as counsel immediately. In his last reply, filed a month ago, pro se, Ziccardi has thrown himself on the Court's mercy:

Of all of the statements made by Aaron Wider during the two days of his deposition testimony, there is one subject on which he was conclusively and indisputably wrong: the intelligence of GMAC’s lead counsel. No one can credibly deny that Mr. Bodzin is a brilliant legal strategist whose litigation savvy is likely unparalleled in any jurisdiction. Unfortunately for defendant HTFC, Mr. Wider took every inch of the twelve hours worth of “rope” that was handed to him and successfully hanged himself with it.

Now heading for the gallows right behind Mr. Wider is defense counsel, Joseph Ziccardi, an honorable but mild-mannered attorney with a modest practice and an impeccable ethical record maintained throughout his nearly fifteen years practicing law – until now. Ziccardi now finds himself in the unenviable position of having lost a case, lost a client, and most important, lost the ability to honestly state that “no one has ever called into question” his professional conduct.

This might all be palatable to Ziccardi if only it were not so unjust. In a situation where, as here, neither the facts nor the law have been found or applied in accordance with the mandates of the Constitution that Ziccardi swore to uphold, acceptance of one’s fate is counter-intuitive to the well-educated and ethical lawyer. Nevertheless, Ziccardi holds out hope that the system that he has dutifully served for most of his adult life and the principles that he has defended on behalf of numerous needy clients will not fail him now.

Notwithstanding the purple prose, as I've already said I think Ziccardi has a very strong argument that his conduct doesn't merit the sanction that Judge Robreno imposed (GMAC naturally disagrees.)

The big picture question here is the degree to which attorneys should be punished for failing to affirmatively prevent their clients' incivility. Some punishment of this client is certainly warranted. But punishing the "mild-mannered" solo practitioner attorney as if he were equally culpable goes too far. I hope that the Court walks it back a bit.

[Update: Judge Robreno has ordered a hearing on the pending motion for reconsideration, to be held June 18. This may be a good sign for Ziccardi.]