From Daily Business Review, via Law.com, comes the story of a lawyer's "super-size" gaffe and its consequences.
Saying a bankruptcy judge was "a few french fries short of a Happy Meal" may cost an out-of-state lawyer the ability to practice in U.S. Bankruptcy Court for the Southern District of Florida.
The comment already has cost Chicago-based McDermott Will & Emery partner William P. Smith his client -- Miami Beach's Mount Sinai Medical Center & Miami Heart Institute.
Bankruptcy Judge Laurel Myerson Isicoff in Miami also slapped the hospital with a restraining order at the same hearing where Smith made his fast-food quip. She found Mount Sinai's anti-competitive actions in the bankruptcy case of South Beach Community Hospital violated bankruptcy law.
During a May 7 hearing, Smith told Isicoff, "I suggest with respect, your honor, that you're a few french fries short of a Happy Meal in terms of what's likely to take place."
Smart-aleck statements do not travel well. When you read the law.com story you can almost hear the local lawyers cueing up the "Deliverance"-style banjos- complaining about arrogant big-city lawyers, etc. Do what you learned to do when you were 10-- act respectful when you go to someone else's house.
Good to know I guess.
The BK judges are appointed at a lot lower level, so they usually are political w/o the knowledge and temperment part.
It was a real shock when the last appointee had both. The rumor mill said the court of appeals got red faced when the last guy had some high profile cases and started acting like boss hogg.
When in bankruptcy court outside NY and Cali, I would assume that the judge is the boss, you are the bitch, and actual law is optional.
The context is available here. The issue was whether a particular (and, I would imagine, complex) transaction was likely to close. I continue to assume from the dialog with the judge that the legal issue at hand was whether a contract had been formed, or a very similar issue. The lawyer was arguing that there were too many uncertainties involved, that there were more than ministerial actions remaining to be taken. He was talking with the judge very specifically about what the next steps were in closing the transaction at issue.
Immediately before the lawyer's statement, the judge described her view that there was only one condition remaining. And it was to THAT comment, that the lawyer replied she was a few french fries short of a Happy Meal in terms of what's likely to take place.
I'm not saying it's ever wise to use a phrase like that in the courtroom, but when you look at it in its full context, it's not a personal aspersion on the judge, akin to calling her a moron, it's a statement that she is substantively wrong on the steps remaining before the transaction at issue would be completed.
Like a teacher sending an unruly child to the principal's office, it's an admission that the judge is incapable of keeping the lawyer in control by herself in her own courtroom. And that's really not an admission a judge should make very often. I would predict a wave of most unbecoming obsequiousness by lawyers appear before her for awhile.
The judge had a right to be upset about the comment--which was completely unprofessional. However, the judge also seems to have overreacted.
I would note that the entire context is missing--in that we only have the OSC and the limited transcript so we don't know what else precipitated this (though the OSC does not seem to indicate any other problem from the judge's perspective).
(My name is Ozymandius, King of Kings, Look on my works, ye Mighty, and despair!)
No wonder there is such contempt for judges (and lawyers)
And now, in this broader context, a lawyer makes a single humorous crack and he gets sanctioned big time??!! Give us a break, Your Lordship.
If you smart off to a judge, you are jeopardizing yourself and your client. You are not in court to be funny, act cool, or show yourself off. You are there for your client.
How, exactly, did the "Happy Meal" remark bear any plausible hope of doing the client any good? It did not.
Could a reasonable attorney see that the remark, in *any* context, might offend the judge? Of course.
Now the attorney has the opportunity to "show cause" why the comment wasn't so offensive &why he shouldn't be barred from the court. That's how the system is supposed to work, and how I hope it continues to work for as long as I am practicing law.
This is precisely why I never go into a Bankruptcy Court without reminding the judge that he/she is NOT an Article III judge, and that I am not waiving my right to have any final decision made by a REAL judge.
Note to self: do not hire DiverDan to represent me in any courtroom, bankruptcy or otherwise.
To those claiming that this was not a personal insult directed at the judge: May you be spared from the fate of ever being represented by a trial lawyer so inexperienced as to think that you can safely come that close to delivering a mocking insult to the judge before whom your case is being heard! There are 10,000 ways to make an argument that "a transaction isn't going to close," if that's the argument you need to make, without saying, via a juvenile insult, "You're crazy if you think that's going to happen, Judge." And that's precisely the gist of what Smith said.
For those who say this is an example of judicial overreaction: To the contrary, the fact that she finished the hearing and only then issued the show-cause order shows that her reaction was considered and calculated. There is caselaw expressing a preference for holding hearings on civil contempt in separate proceedings from the those in which the underlying offense occurred (and sometimes before a separate judge) — precisely to ensure that contempt rulings aren't made in the heat of passion, and that the accused has an opportunity to reflect and prepare a defense (or, as would be appropriate here, an apology). A judge acting out of ego would have had this fellow in cuffs in a holding cell within minutes.
The best and most self-effacing, even-tempered judges I know — and every description I've read of this judge would suggest she's first-rate — would have reacted in exactly the same way. The reason it's called "contempt of court" instead of "contempt of judge" is because there is an institutional value that must be preserved and protected — orderly trials, held before someone who's in charge and who's treated with respect (deserved or not!), are essential for the rule of law. If the courtroom turns into a schoolyard brawl, you can't even make a record on the basis of which trial judge's errors can be reviewed and corrected. The law can't actually compel you to respect the judge, but it can, and does, prohibit you from acting or speaking contemptuously while you're in court and it's in session. And lawyers — especially senior partners in their 50s who are department heads in multinational mega-firms, whether they're from out of town or not — are supposed to know that.
Punishment hasn't been decided yet. The order requires lawyer Smith to appear at a designated date and time (and he'll be there with counsel of his own, which is appropriate), at which time further testimony may be taken and exhibits submitted. On the basis of that hearing, some judge (and it may or may not be Judge Isicoff; she might ask another, more disinterested judge to preside over the hearing and make the ruling) will decide whether punishment is warranted, and if so, what.
The maximum likely punishment at that hearing itself, per the show-cause order, would be the revocation of lawyer Smith's right to continue to enjoy the privilege of appearing before the federal bankruptcy courts of the Southern District of Florida. Smith isn't admitted to practice before the Florida state courts (i.e., he isn't a member of the Florida Bar), nor admitted to practice before the federal courts based in Florida, but he got special permission — called "admission pro hac vice" — so he could appear before Judge Isicoff for purposes of that client and this case. As part of the process of asking for that permission, he had to promise to obey local rules and behave himself in the same manner as local lawyers do.
However, if his pro hac vice admission is revoked or even temporarily suspended, or some lesser admonishment is made on the record, word of that will likely be sent to his home-state bar association (in this instance, probably Illinois). His home-state bar could also consider taking some sort of additional disciplinary action, like a public or private reprimand, based on the factual findings made by the federal bankruptcy court in Florida.
The practical consequences — for him, but also for his firm — are already occurring. He's been fired in this case. He's gotten horrible national press. His firm is undoubtedly concerned. He might lose his position within it; he might be fired.
Smith probably will have the right to appeal any revocation or suspension of his pro hac vice privileges in Florida, or any home-state action in Illinois. I will be stunned if this gets that far, though: That will only happen if he and his partners (who presumably are now intimately involved) and the counsel they've retained to represent him come out with all guns blazing. That would be doubling down — raising the stakes from a major career embarrassment (and possible job change) to a potentially career-ending event.
I never say "With all due respect" and I don't think judges need or want you to say that, because it basically means, "You are completely full of BS Your Honor." I have heard judges say this at conferences. Most judges don't mind if you politely express your disagreement with them. So, when I need to, I just state my disagreement gently ("I am not sure that is correct" or "Well I have a different perspective") and then explain the reasons for the disagreement. I don't understand how any competent attorney could think that the "Happy Meal" comment would be persuasive to the judge, who is the audience he should have been trying to persuade.
I'd love to keep the FBI snoops following false leads, and if I can contribute to that I will. Indeed, I'm in the process of designing a libertarian e-mail client that randomly affixes terrorist trigger words to all e-mails sent, after paging down to hide them after whitespace, and, perforce, to the replies thereto, even to those from gummint agencies.
I have often thought I'd feel freer in one of those countries where judges are routinely shot for misbehavior and bad decisions. Though I do have a law degree, I eschew licensing because I cannot conscientiously participate in our corrupt legal system, particularly in its focus on victimless crimes, and I can't help despising, or worse, those who do participate.
I'm sure I, like my heroes Einstein and MLK, am already in the FBI watch list.
Liberty is not a spectator sport.
Jim
http://www.legalreader.com/archives/003773.html
All the lawyer had to do was offer her a foot rub, and it woulda been "all good" from there.
Mt. Sinai became a creditor of its competitor South Shore by buying someone else's $483 claim, then brought in a heavyweight BK attorney from Chicago to press the matter. Could that $483 they spent, or however much it was they paid to be among the other hospital's BK creditors, prove to be a horrendously bad investment? Might Mt. Sinai stand to lose much more than the $483 and costs of legal representation for tortious interference or some other legally impermissible conduct, e.g., antitrust violation? (Sorry, I don't know exactly what the cause of action would be, but I do have a sense that Mt. Sinai was trying to be clever and wound up doing a very stupid thing, perhaps upon advise of counsel.) And might there be a legal malpractice case waiting to be filed in this one?
You're correct of course that setting a sanction hearing for later, rather than immediately imposing a contempt fine fro direct contempt, is a preferred procedure. But that assumes that contempt or sanctions are appropriate to begin with.
What's wrong with a nice, old-fashioned tongue lashing from the court? There's no jury there. The judge could have said something like: "Counsel, I don't know how they do things where you're from, but in my courtroom I don't tolerate such talk." Or, with a particularly menacing tone, asking the lawyer: "counselor, did you just suggest that the court was a few french fries short of a Happy Meal?" Then the lawyer would undoubtedly have apologized, respect for the authority of the court would be upheld, and there would be no need for later hearings and official sanctions. And if the lawyer refused to apologize, it would be much clearer that he intended to make a contemptuous comment. In the brief snippet of the record I linked to above, though, there's no indication that the judge had given the lawyer any prior warnings or that the stupid remark of the lawyer was more than an isolated incident. If it turns out that the judge had already warned the lawyer that he was on thin ice, that would change my opinion.
Almost any fight between a judge and a lawyer is an unfair fight, because it will ultimately be resolved by the judge's fellow judges. A judge should think long and hard before seeking to impose sanctions like this on a lawyer for a single isolated saying of something stupid.
In this particular case, it looks to me like the judge let herself get a little carried away. I haven't kept up in this area, but the judge's order that the respondent may not in the future contact other government agencies, which might themselves take action against the debtor, is really pushing the boundaries of her jurisdiction. Given that this was apparently a motion argument (and in any event, there is no jury in a bankruptcy court) it seems to me that going through a show cause hearing says more about the judge than the lawyer.
Quis custodiet ipsos custodes?
If a judge says something that is on its face stupid, then other than the Appellate Court, who can call the judge on it? Bill O'Reilly?
Too bad one can't file a malpractice suit against judges and lawyers and have it adjudicated by doctors
Absolutely right. Whether an OSC was an overreaction is irrelevant--the lawyer assumed the risk of an overreaction when he departed so severely from the decorum that any court, including BK court, demands.
Judges are powerful people. When you offend a powerful person, you take the risk that the powerful person will utilize their power in a draconian manner to discipline or punish you, or even to repair their own wounded egos. Is it "right", in some playground sense of fairness? Absolutely not. Then again, I thought this board was full of self-sufficient libertarians, perfectly capable of assigning fault.
Imagine if someone had said something similarly boneheaded in another situation with asymmetric power (job interview, business development scenario, etc.) The relatively powerful person hypothetically responds by firing off an e-mail to every other well-connected person in the field that she knows, discussing the unprofessional behavior and making conclusions about the person's character. This would be an overreaction. It would of course NOT be libel, truth is a defense. Further (and more germane to our discussion), many of us here would agree with the statement that the unprofessional person made the statement at his own peril. I see no difference here.
What he should have said, simply, was "With all due respect, Your Honor, I think you're being very unrealistic if you think this will happen."
The attorney's statement was unprofessional, but unless the attorney also helped the client to wilfully disobey the stay, I think a bar from practice in that court is excessive.
And if you're a big city lawyer in a small town (or even smaller city) court, be especially careful not to be an arrogant jerk.
I don't know if that's at work here, but I don't think it would be bad if it is.
Nick
Or to put it another way, you're going to be presumed to be an arrogant jerk, so your job is to dispel that presumption, not confirm it.
In fact, the case raises interesting anti-trust (Noerr Pennington) and First Amendment issues. The underlying case is an attempt by one hospital, not in bankruptcy (represented by Smith) to attempt to use the bankruptcy court and state regulators to prevent another hospital, in bankruptcy, from selling its license to another firm that would then re-open the closed hospital. Smith had his client by a $483 claim against the debtor, so his client could then claim to be a creditor of the debtor, appear in bankruptcy court, and object to a plan by which the debtor-hospital would sell its operating license to another firm, which would use the license to open a hospital. Smith also had his client attempt to persuade state regulators to not renew the debtor's license. The latter action was viewed as a violation of the automatic stay rules by the trustee, who filed a TRO to enjoin Smith's client from interfering with the debtor's license. The judge granted the trustee's TRO application, barred Smith's client from attempting to interfere with the debtor's license without court approval, including barring Smith's client from contacting the media or state regulators about the license. Smith's "Happy Meal" comment came at the TRO hearing, apparently. In any event, the Miami bankruptcy bar should be grateful to Smith, since one law firm now represents his client and he had to hire another law firm to represent him in the bankruptcy court's OSC proceeding.