More and more lawyers are being slapped with sanctions for "discovery abuse" -- making the already high cost of lawsuits even higher by dragging out or otherwise impeding the process in which both sides obtain relevant information before trial.
In a recently published decision on this issue, D.C. Superior Court Judge Curtis E. von Kann took two local lawyers to task for "repeated instances of dilatory, evasive, bad faith and vexatious conduct . . . in responding to legitimate discovery efforts" in defending a landlord-tenant dispute. He ordered the lawyers to pay $1,500 in legal fees and other expenses for the costs incurred by the other side fighting over the discovery.
That stiff penalty was unusual both for its size and the fact that it was directed against the lawyers alone, not at their client.
Von Kann sounded the warning that other lawyers should beware as well. " M embers of the bar generally must realize that this sort of vexatious, disingenuous and dilatory behavior is totally contrary to the letter and spirit of court rules and will not be tolerated," he said.
But von Kann removed much of the sting from the sanctions by identifying the lawyers throughout the version of the opinion published in the Daily Washington Law Reporter only as "X" and "Y." Von Kann explained in the published opinion that he masked the attorneys' identities because "publication of their names is not necessary at this time."
For those who are curious to know the names behind the letters, the lawyers whose conduct von Kann found "borders on contempt" are Philip M. Musolino and Sidney Bresler of Miller, Loewinger & Associates, according to the unexpurgated version of the opinion contained in court files.
Musolino said he considered the fine and accompanying criticism "at a minimum at bit unwarranted." He said their conduct was proper and took place in a case in which both sides were playing hardball.
"There are different ways to litigate cases . . . ," he said. "This case both sides decided to litigate discovery issues with some vigor." Musolino and Bresler have appealed the order.
The Maryland Court of Appeals adopted new ethics rules this month that will govern the conduct of about 16,000 attorneys practicing in the state when the rules take effect Jan. 1, 1987.
Among the most controversial changes is a rule allowing lawyers to solicit business through direct mailings to people thought to be in need of legal services.
Personal injury lawyers, for example, could write to accident victims offering legal help, or estate lawyers could scour obituary notices and contact relatives of the dead person.
That relaxation in the rules against solicitation prompted an outraged dissent by two of the seven Court of Appeals judges.
Except for the continuing restriction on in-person solicitation of strangers, they said, the rule "comes as close as any rule possibly could to legalizing 'ambulance chasing' by the profession."
Judge John McAuliffe, joined by Judge Lawrence Rodowsky, warned that the change is "inimical to the best interest of the legal profession" and "likely to lead to invasion of the privacy of those who receive the . . . mailings."
McAuliffe raised the specter of lawyers, competing to be the first to contact an accident victim or surviving relatives, paying ambulance crews, tow truck operators or emergency room workers to tip them off.
"The descent of lawyers upon accident victims is an abomination, only slightly less offensive in the form of written communication than by personal confrontation," he added. "People have a right to be left alone in times of bereavement, pain or shock."
George D. Solter, a former Baltimore Circuit Court judge who headed a court-appointed panel that recommended the new ethics code, said the panel concluded that the change was compelled by recent Supreme Court decisions on First Amendment protections for advertising by lawyers and other professionals. "We just felt the constitutional issue overrode the risk involved," he said.
The new rule bars direct solicitation when the lawyer "knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer. Still, Solter said, "It's a difficult decision for lawyers to know when those restrictions apply and when they don't."
With the adoption of the new ethics code, Maryland became the 12th state to implement new rules based on the American Bar Association's Model Rules of Professional Conduct.
The D.C. Bar plans to forward its recommendations about the model rules to the D.C. Court of Appeals by the end of June. A public meeting to hear comments about the proposed changes will be held at 1:30 p.m. Thursday at the bar's offices at 1707 L St. NW.
Prosecutorial Moves: At the U.S. Attorney's office here, Senior Litigation Counsel E. Lawrence Barcella Jr. is leaving in June for Finley, Kumble, Wagner, Heine, Underberg, Manley, Meyerson & Casey; Harold Damelin, deputy chief of the grand jury section of Superior Court operations, this week joins Arent, Fox, Kintner, Plotkin & Kahn; Jerry Goren, who prosecuted the Catherine Fuller murder case, is going home to California; and W. Randolph Teslik, who headed the Superior Court grand jury section, moves up the ladder to replace Goren as deputy director of Superior Court operations; Raymond C. Hurley becomes the new chief of the Superior Court grand jury section.
The Washington Council of Lawyers celebrates its 15th anniversary with a reception Friday evening at Covington & Burling . . . . A lawyer who sent a letter to opposing counsel calling him a "nefarious . . . piranha" and a liar may be sued for libel, the Pennsylvania Supreme Court ruled recently. The court held that the letter "was not directly relevant to the court proceedings" and therefore not covered by the normal privilege accorded statements made in court.