Legal Ethics

Lawyer's repeated instructions to not answer deposition questions draws sanction for Kramer Levin

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Kramer Levin Naftalis & Frankel will have to pay attorney fees covering an opponent’s deposition costs because one of its lawyers repeatedly instructed a witness not to answer questions.

Delaware’s chancery court imposed the sanction in an Aug. 14 letter opinion, the Legal Profession Blog reports. According to the opinion, Kramer Levin lawyer Philip Kaufman instructed the Feb. 6 deposition witness—another Kramer Levin lawyer—not to answer 75 questions.

Law360 (sub. req.) says the litigation involved a “highly tumultuous business divorce” between co-CEOs of a translation services company. One of the CEOs, Philip Shawe, had sought to disqualify Kramer Levin lawyer Ronald Greenberg from representing the other CEO, saying Greenberg has been a central figure in past disputes, according to this prior Law360 story. Kaufman was representing Greenberg in the deposition.

The opinion by Chancellor Andre Bouchard said Kaufman objected to many questions that “were benign and did not implicate any privilege.” The opinion listed many examples, including these:

Q. And in that e-mail you called Mr. Shawe’s e-mails foolish. Correct?

Mr. Kaufman: Direction not to answer. He is not going to characterize his communications. They say what they say… .

Q. Mr. Greenberg, did you have oral communications with ADP regarding TransPerfect in the period March and April and May 2014?

Mr. Kaufman: Direction not to answer. …

Q. Who is Mr. Gerber?

Mr. Kaufman: Direction not to answer. …

“The litigation of these actions has been a heated affair to be sure, but that does not excuse unprofessional conduct,” Bouchard wrote. “Mr. Kaufman’s defense of this deposition crossed the line between zealous advocacy and unprofessional conduct, and frustrated the fair examination of Mr. Greenberg.”

Bouchard said he was sanctioning Kramer Levin but not Kaufman because he was acting primarily as counsel for the witness during the deposition.

Neither Kaufman nor a spokesperson for Kramer Levin immediately responded to a request for comment.

Extra word in headline removed at 7:15 p.m.

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