Trials & Litigation

Federal judge reminds lawyers that 'this proceeding is not the playground'

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Updated: A federal judge in Colorado has warned lawyers for litigants in a business dispute that he will not “sit idly by in the face of further mudslinging.”

Senior U.S. District Judge William J. Martinez of the District of Colorado addressed attorney conduct in a “final thoughts” section of a May 18 order denying motions by both sides.

Law360 has coverage.

The motions, Martinez said, “punctuate a disturbing trend in counsel’s conduct in this case.”

“Litigation by its nature involves some conflict, but counsel has taken this to the extreme,” Martinez said. “Attorneys are officers of the court and expected to recognize the vast gulf between zealous advocacy and recalcitrance.”

Martinez denied a “motion to show authority” that he construed as a motion for summary judgment that was filed too late. And he denied a motion to disqualify one of the lawyers because it wasn’t filed until more than a year after the allegedly conflicted lawyer entered the case.

“A litigant may not simply sit on a known right to disqualify opposing counsel until an opportune time,” Martinez wrote.

Martinez found this alleged conduct troubling:

  • The lawyers “repeatedly accused each other of acting inappropriately, thereby further escalating tensions.”
  • The lawyers in the case were unable to meet and confer in good faith, resulting in a magistrate judge’s order that they record their meetings and submit the recordings in the event of discovery disputes.
  • The lawyer who was the subject of the disqualification motion responded with a motion to disqualify the opposing counsel.
  • In an email exchange regarding discovery disputes, plaintiffs’ lawyer Joshua Lax wrote to defense counsel Rachel Crockett that that members of his law firm “continue to be shocked by the tenor and content of [Crockett’s] communications.” He also said Crockett’s earlier email was “oddly contentious and disingenuous.” Crockett responded that the “tenor and tone” of Lax’s email saddened her and said his offer of a relationship “reset” was “disingenuous.”

Martinez said he was “struck by the contentiousness and the aggressively personal nature” of the email exchange.

“Nor can the court ignore Lax and Crockett’s strangely similar word choice,” Martinez wrote. “From this, the court can only conclude that this unbecoming exchange is the lawyerly equivalent of the familiar schoolyard refrain, ‘I know you are but what am I?’ Counsel should not have to be reminded that this proceeding is not the playground.”

Martinez then warned that “continued unprofessional conduct of this kind” could spur him to make a complaint to the district court’s Committee on Conduct, “among other possible sanctions.”

Lax’s LinkedIn profile says he is a lawyer with DiCello Levitt Gutzler in New York. He is no longer listed as an attorney on the firm’s website, however, and a person who answered the phone said he no longer worked there. He did not immediately reply to a message left at a number and an email address listed by the New York courts.

Crockett is an associate with Lloyd & Mousilli. Lema Barazi, a partner at the firm, responded to the ABA Journal’s questions in an email. The questions and answers are:

ABA Journal: Does Crockett agree the email exchange was improper?

Barazi: As Judge Martinez noted, he was struck by the contentiousness and aggressively personal nature of the exchange. We were too. We believe Ms. Crockett’s response to Mr. Lax’s abrasive email was professional and measured.

ABA Journal: Does Crockett disagree with Judge Martinez?

Barazi: Judge Martinez is experienced, smart, runs an efficient and fair court, and is, for good reason, widely respected. Neither Ms. Crockett nor I are about to disagree with him. Nevertheless, we regret being grouped together with plaintiffs’ counsel.

ABA Journal: Is Crockett still an attorney on the case?

Barazi: Of course she is.

ABA Journal: What is the next step?

Barazi: The next step is to pick a jury and win this case, which Ms. Crockett and I look forward to doing.

ABA Journal: Does Crockett have any other reaction?

Barazi: There is quite a bit going on in this case beyond the particular order that got your attention. As much respect as we have for the ABA Journal, we are not going to litigate this matter there. We will instead rely on what happens in the courtroom and what is in the record, which includes the attached order, entered just a few days before the one you’re asking about.

The email attachment was a May 1 order by Martinez imposing monetary sanctions on Lax for serving a subpoena after the discovery deadline. He will have to pay the opposing counsel’s attorney fees related to the subpoena and sanctions motion.

Updated May 24 at 2:25 p.m. to add comments from Lema Barazi of Lloyd & Mousilli.

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