Swearing and ‘Snickering’ Take Center Stage in Philly Case
Remember the lawyer-client combo who were fined more than $29,000 because the client used the f-word (or variations thereof) 73 times during a deposition? According to the Legal Intelligencer, the lawyer, Joseph Ziccardi, whom the judge said was culpable because he “snickered” at his client’s brazen conduct, is trying to get himself off the hook.
Here’s what happened: In a 44-page opinion issued in February, Judge Eduardo Robreno found that Aaron Wider, the CEO of HTFC, a mortgage investor, engaged in “hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony.” As for Wider’s lawyer, Ziccardi, Judge Robreno wrote: “The nature of Wider’s misconduct was so severe and pervasive, and his violations of the Federal Rules of Civil Procedure” — particularly Rules 30 and 37 — “so frequent and blatant, that any reasonable attorney representing Wider would have intervened . . .”
According to today’s story, court records show that ever since then, Ziccardi has been urging Robreno to reconsider the sanctions, arguing that he was not the lawyer who “snickered,” and that he was never given proper notice that he faced sanctions under FRCP 30 and 37.
In a footnote in his February opinion, Robreno said the video showed Ziccardi “chuckling at Wider’s abusive behavior” and that GMAC’s lawyer, Robert B. Bodzin of Kleinbard Bell & Brecker in Philadelphia, commented that “your snickering counsel is not appropriate either because all you’re doing is encouraging the behavior of your client.”
In his motion for reconsideration of the sanctions, Ziccardi says that “the ’snicker’ referenced by Bodzin in the deposition was that of Raymond Voulo, the deponent’s New York counsel.” Attached to the motion are affidavits from both Ziccardi and Voulo that say Voulo is the “counsel” who chuckled or “made some other non-verbal comment” at Wider’s offensive conduct. Ziccardi also argues that he made “significant, repeated efforts to curb his client’s behavior … in large part, off the record, as is completely proper.”
But Bodzin argues that the newly presented evidence shouldn’t change the judge’s decision. “While the video record may be unclear as to whether it was Ziccardi and/or his co-counsel, Raymond Voulo, who ’snickered,’ both Ziccardi and Voulo acted as a team in representing Wider throughout his depositions,” Bodzin wrote.
72 f-bombs spread over 12 hours of deposition is only one bomb every 10 minutes. That’s the definition of reigning it in.
I guess we’ll have to see if the judge has the ‘last laugh’ or not.
If the sanctions were imposed solely because of the snickering, the motion might have some merit. But the snickering was just a small part of it. The larger issue is that when a client acts in an outrageous fashion during a deposition, and engages in unacceptable behavior, as happened in this case, the lawyer cannot simply adopt the role of a potted plant. Ziccardi should have intervened. I doubt that the judge will grant reconsideration. His opinion shows that he was deeply angered by Wider’s conduct during the deposition. The “I did not snicker” defense is not going to win this battle.
What about the argument that Ziccardi tried to get control of his client during breaks, off the record? If that’s true, does it make a difference here? At the end of the day, there’s only so much you can do in that situation without stopping the deposition altogether.
Carl Sandburg, repeating an old observation, asked “Why do hearse horses snicker when they are transporting a casket containing a lawyer?” If hearse horses can get away with snickering, why not lawyers?
Apparently no go in Judge Robreno’s courtroom. $29,000 can buy a lot of Snickers candy bars.
Judge is saying that lawyers are responsible for the behavior of their clients, even behaviour that is outside their control? A single snicker is a normal human reaction and I don’t think it should be fined unless the snickers are repeated or rise to the level of chortle or outright knee-slapping laughter.
it is out of control. If this conduct were to be allowed, then it would only foster this type of conduct. A little much agaisnt the attorney, but something needed to be done. Attorney should have beat his client for behaving that way. Beyond zelous advocacy.
The 44-page opinion from the link above reads like it was taken from “The Sopranos!” Wider was out of line and his attorney was as well! The counsel for GMAC was told to “go f himself” on several occasions. The guy also called counsel a clown! He threatened to have him drinking his breakfast, lunch and, dinner… That’s unacceptable! The judge was correct in ordering these sanctions! No lawyer should be mistreated during a judicial proceeding. Ziccardi should have counseled his client that these proceedings are not made for TV!! Hopefully, Wider will be prepared to answer the questions at his next deposition! And hopefully, he will obtain new counsel that will file to leave out privileged information BEFORE the deposition and not AFTER! Sheesh!
If it is true that he warned his client off the record to dial down the language then he should not get sanctioned. There is only so much you can do to control a client, especially a client with a CEO sized ego. The judge clearly has never represented executives of Wider’s stature if he thinks a stern warning from a lowly lawyer is going to have an effect on a big-time CEO. They treat lawyers like the hired help.. more expensive than the ones who wash his laundry, but not much higher on the food chain. Ding the client, but sympathize with the lawyer who had an out of control client.
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It was simply wrong of the court to fine the attorney. Mr. Zicardi, as the court admits, admonished his client off the record. If there was sucha problem the opposing attorney should have gone on the record and stopped the deposition and brought the matter to the court! Did the attorney do that? No, he allowed the deposition to go on for TWELVE HOURS! Does not sound to me like counsel felt slighted or prejudiced in any manner.
