State’s Objection to Defendant’s Motion for Discovery and Request for Sanctions and Attorney’s Fees was the title of the pleading that crossed my desk. Reading on, I saw that the prosecutor was alleging that I had made fraudulent allegations of fact, engaged in an ex parte communication with the trial judge to which he improperly listened and acted upon, had previously engaged in improper ex parte communication with the court, made frivolous allegations, had filed in bad faith and had violated the Rules of Professional Conduct.

The assertions of the prosecutor were absolutely false and groundless, but nonetheless provoked a strong emotional response. It took great restraint not to bring myself down to the level of the prosecutor’s tactics and personalize this process and counter-attack, but I decided to take the high road. Armed with affidavits and argument to show how ridiculous the prosecutor’s allegations were, I headed to court confident that the judge, who was alleged to be a co-conspirator in my "misconduct," would put the prosecutor in his place. Much to my chagrin, instead of jumping up one side of the prosecutor and down the other, the judge merely ignored the scandalous allegations made in the pleadings and went right to the issues that my original motion raised. He did not chastise the prosecutor, tell him that his allegations were irresponsible, uncivil, unprofessional, violative of the Rules of Professional Conduct, sanction him or take any action to communicate this conduct was intolerable. In my view, the judge should have taken control of this situation to ensure that there would be consequences for such an unfounded attack and to prevent similar abusive tactics from occurring in the future.

It has been several years since I received that pleading in the mail, but going back and rereading it, I can still feel my blood pressure rise. In speaking with other litigators, it is clear that this type of offensive, personal, vindictive tactic is on the rise. In fact, criminal defense, which is my field, seems to have less of this personalized attack than many other practice areas.

I recently had a conversation with a trial judge who recounted having an obviously inexperienced attorney appearing before him. The lawyer was being much too aggressive and offensive for the situation. The judge, recognizing that this was a young lawyer who was on his own, asked the lawyer to approach the bench and tried to advise him that he should reconsider his tactics as they certainly didn’t help his client and were inappropriate. The judge received a motion to recuse shortly thereafter. He came away from this experience less likely to try to offer this type of comment in the future, wondering how to give constructive criticism without being accused of impropriety.

The preamble to the New Hampshire Bar Association Litigation Guidelines, which were most recently published in the March 9, 2001 issue of Bar News, proclaims that conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive is unacceptable in that such conduct tends to delay and often to deny justice. I think that the Bar and trial judges need to work together to instill the value of civility and professionalism by confronting unacceptable and abusive behavior. Even when allegations are completely unfounded, they have an impact upon the recipient, which creates stress, takes one’s attention away from other pressing matters and makes practicing law much less rewarding. Let us send out the message that bullying is not acceptable, won’t be tolerated and has negative consequences. It will make all of our professional lives better.

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