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You know what…this judge WAS a few fries shy of a Happy Meal

by Carolyn Elefant on May 31, 2007 · 18 comments

in Biglaw Practice and Issues, Ethics Issues, Litigation & Courts: Policy and Practice

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Ever since I’ve started my site, I’ve blogged about situations where, in my view,
judges have gone way over the line in sanctioning attorneys for conduct, such as sending a lawyer to jail for refusing to apologize or showing up late for a hearing. But typically, these sanctions have issued against solo and small firm attorneys.

But outrageous judicial conduct isn’t any less outrageous when it’s directed against our biglaw colleagues. And that’s why the scenario described in this,
Lawyer’s ‘Super-Size’ Gaffe Costs Him Client and Possibly Right to Practice Before Fla. Court
(law.com 5/31/07) really ticked me off. According to the article, William Smith, a partner at large, Chicago based law firm of McDermott, Will & Emery commented to Judge Laurel Myerson Isicoff during a hearing Bankruptcy Court for the Southern District of Florida that “with all due respect, you’re a few french fries short of a Happy Meal.” The relevant portions of the transcript, available here at David Lat’s Above the Law show that the judge didn’t say anything other than “proceed counsel” at the hearing. But subsequently, issued a Show Cause order asking Smith to demonstrate why his pro hac vice status shouldn’t be revoked in light of his remarks. The judge also denied Smith’s motion, and Smith’s client has since replaced him with a local firm.

The judge’s decision is wrong on so many levels that I can’t even begin. First, if she was offended by the comment at the hearing, she should have said so right away and given the attorney a chance to apologize. To me, this smacks of a set up. Second, quite frankly, this is overkill. Requiring a lawyer to respond to a show cause order and convening a hearing uses time and resources. Why couldn’t the judge simply have slapped the lawyer with a monetary sanction right on the spot? At least, it would have ended the matter. Third, did the judge really need to copy every other judge on the bench with the show cause order? To me, that’s simply vindictive. After all, many judges may have taken the remark in stride or come back with a snappy quip from the bench in response.

I also question the judge’s motives. I wonder whether she’d have reacted the same way had a local attorney rather than one from an out of state, biglaw firm made the same remark. And as a result of her action, the client did channel its case to a local firm. As a solo, that should give me pleasure (since I often serve as local counsel), but it doesn’t. If I get business, I want to win it fair and square – not because local judges are mistreating out of state counsel.

  • ella

    Are you kidding me? He was so out of line that he deserves whatever he gets. Yes, he probably should have been sanctioned on the spot, but she obviously was trying to keep her cool. At least she did not let him get away with it. I bet a Florida attorney would have suffered the same consequences.

  • ella

    Are you kidding me? He was so out of line that he deserves whatever he gets. Yes, he probably should have been sanctioned on the spot, but she obviously was trying to keep her cool. At least she did not let him get away with it. I bet a Florida attorney would have suffered the same consequences.

  • KCE

    I agree with Ella. The saying “he’s a few french fries short of a happy meal” implies taht the judge is deranged or disabled. When did that become acceptable in court? As for not responding immediately, perhaps the judge didn’t trust herself to react to such a stupid statement immediately. He got what he deserved.

  • KCE

    I agree with Ella. The saying “he’s a few french fries short of a happy meal” implies taht the judge is deranged or disabled. When did that become acceptable in court? As for not responding immediately, perhaps the judge didn’t trust herself to react to such a stupid statement immediately. He got what he deserved.

  • http://www.calblogofappeal.com Greg May

    At first, I was with Ella and KCE. But Carol’s post really made me think. It does seem like the lawyer was sandbagged, Several commenters at the post about this case at Above the Law (http://www.abovethelaw.com/2007/05/atl_practice_pointers_dont_ins.php#more) offer some reasonable possibilities that this comment may not be the insult it appears to be. That may be why the judge didn’t act immediately — in context at the time, it didn’t seem offensive, and she only got ticked off as she reconsidered the remark.

  • http://www.calblogofappeal.com Greg May

    At first, I was with Ella and KCE. But Carol’s post really made me think. It does seem like the lawyer was sandbagged, Several commenters at the post about this case at Above the Law (http://www.abovethelaw.com/2007/05/atl_practice_pointers_dont_ins.php#more) offer some reasonable possibilities that this comment may not be the insult it appears to be. That may be why the judge didn’t act immediately — in context at the time, it didn’t seem offensive, and she only got ticked off as she reconsidered the remark.

  • http://www.susancartierliebel.typepad.com Susan Cartier Liebel

    I wrote this before but it must not have posted. When reading the transcript it seems as either she did not hear the comment, or either heard it and having been described as being new and both ‘no nonsense’ and ‘good-humored’, chose to let it lie. It seems that it may have been others who heard it who reacted and pressured her into doing something more drastic as to preserve her credibility as a jurist and to assauge others who felt ‘their’ court was maligned by an outsider. The transcript doesn’t reflect a pause or looks or anything so it is very hard to tell unless you were there.

  • http://www.susancartierliebel.typepad.com Susan Cartier Liebel

    I wrote this before but it must not have posted. When reading the transcript it seems as either she did not hear the comment, or either heard it and having been described as being new and both ‘no nonsense’ and ‘good-humored’, chose to let it lie. It seems that it may have been others who heard it who reacted and pressured her into doing something more drastic as to preserve her credibility as a jurist and to assauge others who felt ‘their’ court was maligned by an outsider. The transcript doesn’t reflect a pause or looks or anything so it is very hard to tell unless you were there.

  • elguapo

    It really depends on the context, but I would say that, in general, a sharp rebuke would have been sufficient punishment.
    If I were the judge, I would have said “Counselor, I appreciate your attempt at humor, but I’m admonishing you to be respectful in my courtroom. Understood?”

  • elguapo

    It really depends on the context, but I would say that, in general, a sharp rebuke would have been sufficient punishment.
    If I were the judge, I would have said “Counselor, I appreciate your attempt at humor, but I’m admonishing you to be respectful in my courtroom. Understood?”

  • Andy

    This was the right outcome. Sanctioning from the bench should only be done when necessary to protect the decorum of the Court. Otherwise it is better to allow everyone to cool down and to consider the matter with a little perspective. The show cause order just requires the attorney to show up and say that I am sorry, I was out of line, but I was joking. That should be the end of it. It was necessary to CC the other judges because the potential punishment would prevent the attorney from appearing in front of all of the judges.

  • Andy

    This was the right outcome. Sanctioning from the bench should only be done when necessary to protect the decorum of the Court. Otherwise it is better to allow everyone to cool down and to consider the matter with a little perspective. The show cause order just requires the attorney to show up and say that I am sorry, I was out of line, but I was joking. That should be the end of it. It was necessary to CC the other judges because the potential punishment would prevent the attorney from appearing in front of all of the judges.

  • Wendell Finner

    The comment itself seems less offensive when taken out of context. The transcript segment attached to Judge Isicoff’s order shows Smith cross-examining the judge about an order she’d previously entered. To turn the “home-cooking” analysis on its head, would the lawyer have challenged a Chicago judge the same way? I doubt it. Whether or not the judge ever reacts to such conduct, is it the sort of professionalism that a client deserves?
    I’m not convinced as Carolyn that the show cause order was an inappropriate response. Dealing with the unprofessional behavior outside of the context of the immediate hearing makes a certain amount of sense. On the other hand, disbarring a lawyer just for acting like a butt in court would be manifest overkill — should a court hold pro hac lawyers to a higher standard than the locals?

  • Wendell Finner

    The comment itself seems less offensive when taken out of context. The transcript segment attached to Judge Isicoff’s order shows Smith cross-examining the judge about an order she’d previously entered. To turn the “home-cooking” analysis on its head, would the lawyer have challenged a Chicago judge the same way? I doubt it. Whether or not the judge ever reacts to such conduct, is it the sort of professionalism that a client deserves?
    I’m not convinced as Carolyn that the show cause order was an inappropriate response. Dealing with the unprofessional behavior outside of the context of the immediate hearing makes a certain amount of sense. On the other hand, disbarring a lawyer just for acting like a butt in court would be manifest overkill — should a court hold pro hac lawyers to a higher standard than the locals?

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