We overuse the word “childish” when discussing the behavior of lawyers. This dispute though is so utterly childish it can be summed up as “Teacher! Denise swore!” and “But, Dan did it first!”

Rare is the opinion with the word “a**hole” (though without the wusstrisks we use on this site) in the opening sentence. But that’s what you get when a judge levels a benchslap against one side for “intemperate language,” which is apparently a thing that lawyers shouldn’t use.

Now lawyers can be a salty bunch, so it takes a serious outburst to earn the ire of a federal judge. And this woman doesn’t disappoint, allegedly drafting an aggressive email peppered with “intemperate language” combined with shady tactics and outright lying. It’s a cocktail of behavior that deserves consideration if you’re looking for case studies for a professional responsibility course. As the judge writes in his opinion, this is one where the lawyer should have hit “delete” instead of “send.”

Magistrate Judge James C. Francis IV had to lay down the law last month when a lawyer in Alexander Interactive v. Adorama Inc. sent the following email:

You’re an a**hole dan. I have everything taped. And yes, under ny law and the rules of professional conduct, it’s allowed. If you think you’re going to sully my clients with your fictions, you’re a fool. If you try any s**t with the court, I welcome it. We have provided all requested data, all requested backups and have provided it in an orderly and accessible manner, unlike your clients.

Don’t f**k me. I’m done with your unethical behavior. Any motions by you, if you’re trying to build a case for some unmeritorious motion to deflect from your clients’ unethical behavior, will include my recordings from today.

Please govern yourself accordingly.

OK, there’s a lot to unpack there, but let’s focus on the language first. The author was Denise Savage and she doesn’t seem to like Dan. In this case, “Dan” is Daniel J. Brown of Reiss Sheppe.

Savage apologized for her behavior but also suggested that Brown was, in fact, an a**hole. Judge Francis then had to scour the record to conclude that Brown was not nearly as objectionable as Savage suggests. Good for Brown, now there’s a published opinion declaring that he’s not all that bad. After evaluating Brown’s personality, Francis further admonished Savage for playing the “yeah, but he did it first” game. The lesson, as always, is that litigators are quick to act like third-graders.

According to the opinion, Brown brought this whole exchange to the attention of Judge Francis, asking “that Ms. Savage be admonished for her use of profanity toward opposing counsel.” Apparently, poor Dan’s virgin eyes were so offended by the language of this scalawag that he needed the court to do something about it. Jesus, put on your big kid pants before you go to tattling to teacher. Frankly, forcing the judge to waste intellectual resources on whether or not the other side violated your Victorian standards of language is kind of an a**hole move, Dan.

But, let’s give Brown the benefit of the doubt and assume the language quibble was just litigation gravy on the main course of surreptitious recording. Savage claims she taped Brown without his permission and intended to use these recordings in the litigation. While Savage declared that “under ny law and the rules of professional conduct, it’s allowed,” she turned out to be entirely wrong about that. One-party consent is all that’s required to tape a conversation in New York, but that doesn’t mean a lawyer can start using it as a litigation tactic. It’s not exactly forthright to tape your adversary. That said, there are safe harbors. So, if Savage recorded Brown without his permission to create a gotcha moment, she might have violated the prohibition of dishonesty.

Except, she explains, she hadn’t really made any recordings. Which is easily the most unfortunate defense ever since it just proves that she definitely violated the prohibition of dishonesty. D’oh!

As one would expect from a dispute that boils down to a schoolyard argument, Judge Francis expressed how disappointed he is and issued a mere time-out, warning that next time he’ll really be mad. In this whole story, the only person who deserves sympathy is Judge Francis. Sadly, this is the lot in life for too many magistrate judges, the unsung heroes of the federal judiciary. Refereeing discovery fights and petty disputes… and on top of all that not being considered “real” federal judges half the time? Judge Francis has dealt with this garbage day in and day out for almost 29 years!

It’s time to create National Magistrate Appreciation Day.

If you want to read the whole opinion, it’s available on the next page….


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