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McDermott Lawyer's McGaffe:

From Daily Business Review, via Law.com, comes the story of a lawyer's "super-size" gaffe and its consequences.

Saying a bankruptcy judge was "a few french fries short of a Happy Meal" may cost an out-of-state lawyer the ability to practice in U.S. Bankruptcy Court for the Southern District of Florida.

The comment already has cost Chicago-based McDermott Will & Emery partner William P. Smith his client -- Miami Beach's Mount Sinai Medical Center & Miami Heart Institute.

Bankruptcy Judge Laurel Myerson Isicoff in Miami also slapped the hospital with a restraining order at the same hearing where Smith made his fast-food quip. She found Mount Sinai's anti-competitive actions in the bankruptcy case of South Beach Community Hospital violated bankruptcy law.

During a May 7 hearing, Smith told Isicoff, "I suggest with respect, your honor, that you're a few french fries short of a Happy Meal in terms of what's likely to take place."

elChato (mail):
Wow- you could almost see someone making the mistake of being a little too familiar, to the point of being unprofessional, if they know a judge well. This guy was not from there, was admitted pro hac, and the judge was in the process of finding his client had violated the automatic stay, a pretty big no-no.

Smart-aleck statements do not travel well. When you read the law.com story you can almost hear the local lawyers cueing up the "Deliverance"-style banjos- complaining about arrogant big-city lawyers, etc. Do what you learned to do when you were 10-- act respectful when you go to someone else's house.
5.31.2007 9:39am
BTD_Venkat (mail) (www):
Agreed, but it didn't seem sanction worthy or even sufficient to warrant a permanent bar in the jurisdiction. (The punishment seemed excessive IMO.)

Good to know I guess.
5.31.2007 10:25am
Felix Sulla (mail):
BTD_Venkat: Perhaps, but in that case (and I do mean this question honestly) what would an attorney have to say to a judge in such a situation to actually warrant a permanent bar? Or would speech by itself ever be enough?
5.31.2007 10:44am
Happyshooter:
Around here, the backwater division of a beer swilling district, the appointments to the real bench are always political--but the new judges have to pass the smell test of having some knowledge and temperment.

The BK judges are appointed at a lot lower level, so they usually are political w/o the knowledge and temperment part.

It was a real shock when the last appointee had both. The rumor mill said the court of appeals got red faced when the last guy had some high profile cases and started acting like boss hogg.

When in bankruptcy court outside NY and Cali, I would assume that the judge is the boss, you are the bitch, and actual law is optional.
5.31.2007 10:50am
PatHMV (mail) (www):
If you look at the whole transcript, and particularly note the "in terms of what's likely to take place" which he appended at the end, I don't see how you can come to the conclusion that he was using the phrase in the personally derogatory way it's being taken.

The context is available here. The issue was whether a particular (and, I would imagine, complex) transaction was likely to close. I continue to assume from the dialog with the judge that the legal issue at hand was whether a contract had been formed, or a very similar issue. The lawyer was arguing that there were too many uncertainties involved, that there were more than ministerial actions remaining to be taken. He was talking with the judge very specifically about what the next steps were in closing the transaction at issue.

Immediately before the lawyer's statement, the judge described her view that there was only one condition remaining. And it was to THAT comment, that the lawyer replied she was a few french fries short of a Happy Meal in terms of what's likely to take place.

I'm not saying it's ever wise to use a phrase like that in the courtroom, but when you look at it in its full context, it's not a personal aspersion on the judge, akin to calling her a moron, it's a statement that she is substantively wrong on the steps remaining before the transaction at issue would be completed.
5.31.2007 11:26am
Some guy:
If you actually read the quote in context, he is not suggesting that her *mind* is "a few fries short" (which would be an unprofessional insult). What he meant, albeit said clumsily, was that the expected sequence of events, as she summarized them, would be unlikely to lead to the outcome she explained she was premising her ruling upon. The judge is overreacting.
5.31.2007 11:29am
PatHMV (mail) (www):
On the one hand, I know the judge was there and heard his tone of voice, body language, etc. On the other hand, this seems to me like the sort of thing where a judge ought to chew the lawyer out for on the spot, and he'll apologize, and it'll be done.

Like a teacher sending an unruly child to the principal's office, it's an admission that the judge is incapable of keeping the lawyer in control by herself in her own courtroom. And that's really not an admission a judge should make very often. I would predict a wave of most unbecoming obsequiousness by lawyers appear before her for awhile.
5.31.2007 11:52am
Dave N (mail):
It seems like a bad combination--an arrogant attorney from out of town and a judge with a "God" complex.

The judge had a right to be upset about the comment--which was completely unprofessional. However, the judge also seems to have overreacted.

I would note that the entire context is missing--in that we only have the OSC and the limited transcript so we don't know what else precipitated this (though the OSC does not seem to indicate any other problem from the judge's perspective).
5.31.2007 11:55am
Horatio (mail):
I AM JUDGE ALMIGHTY - HEAR ME ROAR - KNEEL DOWN BEFORE ME AND QUIVER!!

(My name is Ozymandius, King of Kings, Look on my works, ye Mighty, and despair!)

No wonder there is such contempt for judges (and lawyers)
5.31.2007 12:40pm
DiverDan (mail):
This is precisely why I never go into a Bankruptcy Court without reminding the judge that he/she is NOT an Article III judge, and that I am not waiving my right to have any final decision made by a REAL judge. Frankly, I cannot imagine in this case not reminding the judge that she has no constitutional authority to exercise "inherent" judicial power (at least not without a complete review by an Article III Court), and that includes the power to punish for contempt. The lawyer needs to appeal to the District Court, and demand de novo review; anything less violates Article III.
5.31.2007 12:58pm
Gideon Kanner (mail):
For the past couple of decades we have been grappling with the "Rambo litigation" syndrome. Lawyers routinely lie, cheat, harass their opponents, flout court rules and deadlines, sabotage discovery, abuse deponents, etc. etc. All this goes on without interdiction from the bench. Judges can't be bothered with what thus transpires in cases they preside over and even what goes on in their own courtrooms. Appellate courts do nothing about it; they invent strained reasons why the lawyers's misconduct is not prejudicial and affirm misconduct-ridden judgments.

And now, in this broader context, a lawyer makes a single humorous crack and he gets sanctioned big time??!! Give us a break, Your Lordship.
5.31.2007 1:15pm
Anderson (mail) (www):
I never understand this "the judge thinks she's God!" nonsense. It's as if the concept of "respect" were fundamentally repugnant to some people.

If you smart off to a judge, you are jeopardizing yourself and your client. You are not in court to be funny, act cool, or show yourself off. You are there for your client.

How, exactly, did the "Happy Meal" remark bear any plausible hope of doing the client any good? It did not.

Could a reasonable attorney see that the remark, in *any* context, might offend the judge? Of course.

Now the attorney has the opportunity to "show cause" why the comment wasn't so offensive &why he shouldn't be barred from the court. That's how the system is supposed to work, and how I hope it continues to work for as long as I am practicing law.

This is precisely why I never go into a Bankruptcy Court without reminding the judge that he/she is NOT an Article III judge, and that I am not waiving my right to have any final decision made by a REAL judge.

Note to self: do not hire DiverDan to represent me in any courtroom, bankruptcy or otherwise.
5.31.2007 1:25pm
Bill Dyer (mail) (www):
I blame David E. Kelley: My extended take on this incident, as part of a long post on whether lawyer shows like "Boston Legal" are encouraging lawyer misbehavior of this sort (as well as fueling public misperceptions of what what trial lawyers can and should get away with on a routine basis).

To those claiming that this was not a personal insult directed at the judge: May you be spared from the fate of ever being represented by a trial lawyer so inexperienced as to think that you can safely come that close to delivering a mocking insult to the judge before whom your case is being heard! There are 10,000 ways to make an argument that "a transaction isn't going to close," if that's the argument you need to make, without saying, via a juvenile insult, "You're crazy if you think that's going to happen, Judge." And that's precisely the gist of what Smith said.

For those who say this is an example of judicial overreaction: To the contrary, the fact that she finished the hearing and only then issued the show-cause order shows that her reaction was considered and calculated. There is caselaw expressing a preference for holding hearings on civil contempt in separate proceedings from the those in which the underlying offense occurred (and sometimes before a separate judge) — precisely to ensure that contempt rulings aren't made in the heat of passion, and that the accused has an opportunity to reflect and prepare a defense (or, as would be appropriate here, an apology). A judge acting out of ego would have had this fellow in cuffs in a holding cell within minutes.

The best and most self-effacing, even-tempered judges I know — and every description I've read of this judge would suggest she's first-rate — would have reacted in exactly the same way. The reason it's called "contempt of court" instead of "contempt of judge" is because there is an institutional value that must be preserved and protected — orderly trials, held before someone who's in charge and who's treated with respect (deserved or not!), are essential for the rule of law. If the courtroom turns into a schoolyard brawl, you can't even make a record on the basis of which trial judge's errors can be reviewed and corrected. The law can't actually compel you to respect the judge, but it can, and does, prohibit you from acting or speaking contemptuously while you're in court and it's in session. And lawyers — especially senior partners in their 50s who are department heads in multinational mega-firms, whether they're from out of town or not — are supposed to know that.
5.31.2007 1:29pm
jimbino (mail):
Horatio has it right. It's because of the wickedness of systems that employ judges like that that god created the antidotes of high-explosives and AK-47s. They don't hate us because they are envious of our democracy, but because we're corrupt throughout.
5.31.2007 1:30pm
Bill Dyer (mail) (www):
BTD VenKat (9:25am above): Here's some procedural explanation that may help you, and perhaps others, make better sense of this:

Punishment hasn't been decided yet. The order requires lawyer Smith to appear at a designated date and time (and he'll be there with counsel of his own, which is appropriate), at which time further testimony may be taken and exhibits submitted. On the basis of that hearing, some judge (and it may or may not be Judge Isicoff; she might ask another, more disinterested judge to preside over the hearing and make the ruling) will decide whether punishment is warranted, and if so, what.

The maximum likely punishment at that hearing itself, per the show-cause order, would be the revocation of lawyer Smith's right to continue to enjoy the privilege of appearing before the federal bankruptcy courts of the Southern District of Florida. Smith isn't admitted to practice before the Florida state courts (i.e., he isn't a member of the Florida Bar), nor admitted to practice before the federal courts based in Florida, but he got special permission — called "admission pro hac vice" — so he could appear before Judge Isicoff for purposes of that client and this case. As part of the process of asking for that permission, he had to promise to obey local rules and behave himself in the same manner as local lawyers do.

However, if his pro hac vice admission is revoked or even temporarily suspended, or some lesser admonishment is made on the record, word of that will likely be sent to his home-state bar association (in this instance, probably Illinois). His home-state bar could also consider taking some sort of additional disciplinary action, like a public or private reprimand, based on the factual findings made by the federal bankruptcy court in Florida.

The practical consequences — for him, but also for his firm — are already occurring. He's been fired in this case. He's gotten horrible national press. His firm is undoubtedly concerned. He might lose his position within it; he might be fired.

Smith probably will have the right to appeal any revocation or suspension of his pro hac vice privileges in Florida, or any home-state action in Illinois. I will be stunned if this gets that far, though: That will only happen if he and his partners (who presumably are now intimately involved) and the counsel they've retained to represent him come out with all guns blazing. That would be doubling down — raising the stakes from a major career embarrassment (and possible job change) to a potentially career-ending event.
5.31.2007 1:55pm
Dave N (mail):
Bill Dyer's comments are first-rate. I agree with Anderson (a rarity but I will acknowledge when I do) that it might be best to make a note not to hire DiverDan--but if I ever need an attorney in Texas, I will definitely consider Bill Dyer (and no, I don't know him, I just followed all the links and liked what I saw).
5.31.2007 1:55pm
Bill Dyer (mail) (www):
jimbino (12:30pm): If I were an FBI agent reading this thread, I think I'd track down your IP address for my files.
5.31.2007 1:58pm
Dave Hardy (mail) (www):
It's never a good idea to use a phrase that a judge could construe as insulting, period. "A few ___ short of a ___" is usually used to express a mental condition, or sheer stupidity. He may have meant it to express incompetion, but it's likely to be read the other way, and was not a phrase that should have been in mind, let alone expressed.
5.31.2007 2:12pm
Christopher Cooke (mail):
The part that gets me is that Mr. Smith somehow thought couching his remark with "I suggest with respect" made the Happy Meals comment acceptable.

I never say "With all due respect" and I don't think judges need or want you to say that, because it basically means, "You are completely full of BS Your Honor." I have heard judges say this at conferences. Most judges don't mind if you politely express your disagreement with them. So, when I need to, I just state my disagreement gently ("I am not sure that is correct" or "Well I have a different perspective") and then explain the reasons for the disagreement. I don't understand how any competent attorney could think that the "Happy Meal" comment would be persuasive to the judge, who is the audience he should have been trying to persuade.
5.31.2007 2:23pm
jimbino (mail):
Well Bill,

I'd love to keep the FBI snoops following false leads, and if I can contribute to that I will. Indeed, I'm in the process of designing a libertarian e-mail client that randomly affixes terrorist trigger words to all e-mails sent, after paging down to hide them after whitespace, and, perforce, to the replies thereto, even to those from gummint agencies.

I have often thought I'd feel freer in one of those countries where judges are routinely shot for misbehavior and bad decisions. Though I do have a law degree, I eschew licensing because I cannot conscientiously participate in our corrupt legal system, particularly in its focus on victimless crimes, and I can't help despising, or worse, those who do participate.

I'm sure I, like my heroes Einstein and MLK, am already in the FBI watch list.

Liberty is not a spectator sport.

Jim
5.31.2007 2:31pm
Henri Le Compte (mail):
Hey! I think I found a picture of the judge in question:

http://www.legalreader.com/archives/003773.html

All the lawyer had to do was offer her a foot rub, and it woulda been "all good" from there.
5.31.2007 2:43pm
neurodoc:
It is the Happy Meal comment and its consequences that everyone has focused on, understandably. I am intrigued by an aspect of the underlying BK case, though.

Mt. Sinai became a creditor of its competitor South Shore by buying someone else's $483 claim, then brought in a heavyweight BK attorney from Chicago to press the matter. Could that $483 they spent, or however much it was they paid to be among the other hospital's BK creditors, prove to be a horrendously bad investment? Might Mt. Sinai stand to lose much more than the $483 and costs of legal representation for tortious interference or some other legally impermissible conduct, e.g., antitrust violation? (Sorry, I don't know exactly what the cause of action would be, but I do have a sense that Mt. Sinai was trying to be clever and wound up doing a very stupid thing, perhaps upon advise of counsel.) And might there be a legal malpractice case waiting to be filed in this one?
5.31.2007 3:17pm
neurodoc:
Bill Dyer, do you have a better sense of jimbino now in light of his response to you? I suggest you think of him like one of those rodeo clowns whose purpose is to distract the bull from its purpose. Clearly, he is not here to contribute to any conversation in a meaningful way.
5.31.2007 3:21pm
PatHMV (mail) (www):
Bill Dyer... I certainly don't claim that the remark was WISE to make. I just don't see it as rising to the level of warranting even serious consideration of disbarment of any sort. My argument is not that it was ok for him to make the remark, but that the penalties being imposed, legally as well as reputationally, are severely out of proportion with the offense, given what a dispassionate reading of the record shows about the context of the remarks.

You're correct of course that setting a sanction hearing for later, rather than immediately imposing a contempt fine fro direct contempt, is a preferred procedure. But that assumes that contempt or sanctions are appropriate to begin with.

What's wrong with a nice, old-fashioned tongue lashing from the court? There's no jury there. The judge could have said something like: "Counsel, I don't know how they do things where you're from, but in my courtroom I don't tolerate such talk." Or, with a particularly menacing tone, asking the lawyer: "counselor, did you just suggest that the court was a few french fries short of a Happy Meal?" Then the lawyer would undoubtedly have apologized, respect for the authority of the court would be upheld, and there would be no need for later hearings and official sanctions. And if the lawyer refused to apologize, it would be much clearer that he intended to make a contemptuous comment. In the brief snippet of the record I linked to above, though, there's no indication that the judge had given the lawyer any prior warnings or that the stupid remark of the lawyer was more than an isolated incident. If it turns out that the judge had already warned the lawyer that he was on thin ice, that would change my opinion.

Almost any fight between a judge and a lawyer is an unfair fight, because it will ultimately be resolved by the judge's fellow judges. A judge should think long and hard before seeking to impose sanctions like this on a lawyer for a single isolated saying of something stupid.
5.31.2007 3:22pm
jimbino (mail):
A malpractice case would be great. I'd love to see the litany of proof that the lawyer's behavior was clear malpractice since, in Amerika, the law requires that lawyers and the parties kiss the judge's ass.
5.31.2007 3:28pm
PDXLawyer (mail):
I don't know anything about the reputation of this judge. My experience is that the quality of bankruptcy judges across the US is very uneven - some districts have very, very good bankrutpcy judges, and some have a bench which is downright incompetent.

In this particular case, it looks to me like the judge let herself get a little carried away. I haven't kept up in this area, but the judge's order that the respondent may not in the future contact other government agencies, which might themselves take action against the debtor, is really pushing the boundaries of her jurisdiction. Given that this was apparently a motion argument (and in any event, there is no jury in a bankruptcy court) it seems to me that going through a show cause hearing says more about the judge than the lawyer.
5.31.2007 5:21pm
Horatio (mail):
Almost any fight between a judge and a lawyer is an unfair fight, because it will ultimately be resolved by the judge's fellow judges. A judge should think long and hard before seeking to impose sanctions like this on a lawyer for a single isolated saying of something stupid.


Quis custodiet ipsos custodes?

If a judge says something that is on its face stupid, then other than the Appellate Court, who can call the judge on it? Bill O'Reilly?

A malpractice case would be great. I'd love to see the litany of proof that the lawyer's behavior was clear malpractice since, in Amerika, the law requires that lawyers and the parties kiss the judge's ass


Too bad one can't file a malpractice suit against judges and lawyers and have it adjudicated by doctors
5.31.2007 5:22pm
TyWebb:
Anderson:


I never understand this "the judge thinks she's God!" nonsense. It's as if the concept of "respect" were fundamentally repugnant to some people.

If you smart off to a judge, you are jeopardizing yourself and your client. You are not in court to be funny, act cool, or show yourself off. You are there for your client.

How, exactly, did the "Happy Meal" remark bear any plausible hope of doing the client any good? It did not.

Could a reasonable attorney see that the remark, in *any* context, might offend the judge? Of course.


Absolutely right. Whether an OSC was an overreaction is irrelevant--the lawyer assumed the risk of an overreaction when he departed so severely from the decorum that any court, including BK court, demands.

Judges are powerful people. When you offend a powerful person, you take the risk that the powerful person will utilize their power in a draconian manner to discipline or punish you, or even to repair their own wounded egos. Is it "right", in some playground sense of fairness? Absolutely not. Then again, I thought this board was full of self-sufficient libertarians, perfectly capable of assigning fault.

Imagine if someone had said something similarly boneheaded in another situation with asymmetric power (job interview, business development scenario, etc.) The relatively powerful person hypothetically responds by firing off an e-mail to every other well-connected person in the field that she knows, discussing the unprofessional behavior and making conclusions about the person's character. This would be an overreaction. It would of course NOT be libel, truth is a defense. Further (and more germane to our discussion), many of us here would agree with the statement that the unprofessional person made the statement at his own peril. I see no difference here.
5.31.2007 6:37pm
Californio (mail):
I note that the persons to ask about the quality of bankruptcy judges would be bankruptcy practitioners, not casual travellers into and out of BK ct. On those rare occasions when I go out of my "home" district, I note that some adjacent districts are very very provincial - meaning the default position is they don't like people they don't know. Being cognizant of this, I would never mouth off for the sake of being flip - it will at best cost me time and money to deal with the problems I create, it may very well harm my client's interests. We all know that an adverse ruling can be justified in a variety of ways well short of "I ruled against you because your lawyer is a rude jackass." Attempts at "folksy" quips are always ill-advised - I once heard an old war-horse state court litigator say the motion before that particular bankruptcy court did not stand a "Chinaman's chance" of winning. I believe this set the tone for that particularly mean bankruptcy judge for the rest of that litigation matter - much to my advantage.
5.31.2007 6:40pm
David M. Nieporent (www):
I never say "With all due respect" and I don't think judges need or want you to say that, because it basically means, "You are completely full of BS Your Honor." I have heard judges say this at conferences. Most judges don't mind if you politely express your disagreement with them.
But that's why "With all due respect" is such a great phrase -- you can tack it on to a respectful comment and yet it signifies something else, but with complete deniability.

What he should have said, simply, was "With all due respect, Your Honor, I think you're being very unrealistic if you think this will happen."
5.31.2007 7:11pm
Public_Defender (mail):
The appropriate sanction for most single-event, heat-of-the-moment, out-of-line attorney courtroom comments is a public apology, which should be quickly accepted. Then everyone should just move on.

The attorney's statement was unprofessional, but unless the attorney also helped the client to wilfully disobey the stay, I think a bar from practice in that court is excessive.

And if you're a big city lawyer in a small town (or even smaller city) court, be especially careful not to be an arrogant jerk.
5.31.2007 7:13pm
NickM (mail) (www):
Some judges issue OSCs re sanctions as effectively the sanctions in and of themselves - the lawyer is effectively required to spend a few hours preparing a written response, a couple hours more making an appearance, and voila - we have effectively a thousand dollars or more of billable time foregone (assuming the lawyer doesn't want to risk stuffing this into the bill and maybe being caught by the client having done so). The lawyer is apologetic and insists he didn't mean to be contemptuous, the court pronounces itself satisfied and declines to order sanctions, and everything ends there.
I don't know if that's at work here, but I don't think it would be bad if it is.

Nick
5.31.2007 7:36pm
Cornellian (mail):
And if you're a big city lawyer in a small town (or even smaller city) court, be especially careful not to be an arrogant jerk.

Or to put it another way, you're going to be presumed to be an arrogant jerk, so your job is to dispel that presumption, not confirm it.
5.31.2007 7:52pm
Dave N (mail):
Cornellian--Good point. The old age, "When in Rome, do as the Romans do" comes to mind. Acting like a jerk neither wins friends nor influences people.
5.31.2007 9:05pm
Christopher Cooke (mail):
There is an article about this event in the legal press today (for you lawyers/profs it is in your local American Lawyer Media affiliate). The lawyer's conduct does not come off any better, and the judge is defended by many local Miami area lawyers, who obviously do not remain nameless.

In fact, the case raises interesting anti-trust (Noerr Pennington) and First Amendment issues. The underlying case is an attempt by one hospital, not in bankruptcy (represented by Smith) to attempt to use the bankruptcy court and state regulators to prevent another hospital, in bankruptcy, from selling its license to another firm that would then re-open the closed hospital. Smith had his client by a $483 claim against the debtor, so his client could then claim to be a creditor of the debtor, appear in bankruptcy court, and object to a plan by which the debtor-hospital would sell its operating license to another firm, which would use the license to open a hospital. Smith also had his client attempt to persuade state regulators to not renew the debtor's license. The latter action was viewed as a violation of the automatic stay rules by the trustee, who filed a TRO to enjoin Smith's client from interfering with the debtor's license. The judge granted the trustee's TRO application, barred Smith's client from attempting to interfere with the debtor's license without court approval, including barring Smith's client from contacting the media or state regulators about the license. Smith's "Happy Meal" comment came at the TRO hearing, apparently. In any event, the Miami bankruptcy bar should be grateful to Smith, since one law firm now represents his client and he had to hire another law firm to represent him in the bankruptcy court's OSC proceeding.
6.1.2007 1:44pm
Christopher Cooke (mail):
One correction: the linked article on Law.com (an ALM affiliate) is the same one appearing in legal newspaper this morning. So, those of you who read the Law.com article don't need to scour your legal newspapers. Somehow, it seems different in print versus on the computer screen.
6.1.2007 1:49pm