Attitude Adjustment: USDC Sanctions Defense Counsel To Mandatory CLE For Misconduct at Deposition of Co-Defendant’s CEO

Magistrate Judge Michael North of the Eastern District of Louisiana recently awarded unusual sanctions in a discovery motion. The issue presented was alleged misconduct by one defense attorney in his deposition cross-examination of the CEO of another defendant whose interests were adverse to the client of the defense attorney. The underlying suit involved a high profile offshore casualty that resulted in three deaths and multiple personal injury claims.

No fewer than thirty depositions have been taken in the case including some high ranking officers of certain defendants. The particular offensive conduct consisted of defense counsel’s asking improper questions of the CEO and his repeated requests to the CEO “to apologize to the families for the casualty and for the death of their loved ones.” The court noted that counsel pressed the same question seven times over the objection of counsel.

In his 12 page Order and Reasons, Judge North noted that the initial question alone was unprofessional and offensive, agreeing with opposing counsel’s assertion the question was “completely out of line.” The fact that counsel persisted with such questioning raised particular ire with the court. The court found the questioning to be “nothing more than a premeditated stunt with no legitimate purpose.” The conduct was deemed violative of the Professionalism Code of the Louisiana State Bar Association (“LSBA”) which requires counsel to conduct themselves with “dignity, civility, courtesy and a sense of fair play.”

Because defense counsel has a long history of monetary sanctions for similar past conduct in U.S. District Court, Judge North observed that defense counsel seemed to wear his previous sanctions like a “badge of honor”. Rather than award monetary sanction here, the Magistrate ordered defense counsel to attend an additional 10 hours of professionalism and ethics CLE over and above what is required by the LSBA. The court also ordered defense counsel to provide a copy of the court’s ruling to his client and to file an affidavit that he has complied with such directive.

André J. Mouledoux