In a recent decision, Perry v. The Lighting Group, LLC, No. 154923/2018, 2021 WL 4553666 (N.Y. Sup Ct, New York County Oct. 01, 2021) – a sex discrimination case – the court discussed the so-called “Standards of Civility” for New York attorneys.
Here, the dispute arose – as is typical – in the discovery phase of the case, and in particular, the scheduling of a non-party deposition. In sum, defendants intended to pursue the deposition of the witness, via subpoena, on a date certain, and plaintiff’s counsel sought to adjourn that date.
In response to plaintiff’s counsel’s email requesting an adjournment, defendant’s counsel wrote:
I informed you and your office that [sic] on the phone and via email on or around March 8th, that the depositions will be proceeding and that my office is taking the deposition of Ms. Torres on March 29th. There was no objection to the date. I sent you copies of the subpoenas. It is almost two-weeks [sic] later that you are objecting. Unfortunately, my clients want to proceed with Ms. Torres’s deposition on March 29, and I have been instructed by the clients not to change the date. “The deposition is being done by zoom and the Plaintiff is represented by at least three attorneys, therefore, we will be proceeding.
Plaintiff’s attorney responded in an email in which they, inter alia, confirmed that they will not be attending the deposition on March 29, and accused their adversary of “gamesmanship” and “slick lawyering.”
The deposition indeed occurred on March 29th.
After noting that the defendants complied with the subpoena and notice provisions of CPLR 3106 and CPLR 3107, and that plaintiff did not move for a protective order pursuant to CPLR 3103, the court noted that it was “troubled by the conduct of the LG defendants’ counsel in connection with” the deposition.
The court explained:
The Rules of Professional Conduct (22 NYCRR 1200.0), Appendix A (Standards of Civility), provide, at section III, that:
A. In the absence of a court order, a lawyer should agree to reasonable requests for extensions of time or for waiver of procedural formalities when the legitimate interests of the client will not be adversely affected.
D. A lawyer should endeavor to consult with other counsel regarding scheduling matters in a good faith effort to avoid scheduling conflicts. A lawyer should likewise cooperate with opposing counsel when scheduling changes are requested, provided the interests of his or her client will not be jeopardized.
E. A lawyer should notify other counsel and, if appropriate, the court or other persons at the earliest possible time when . . . depositions . . . are to be canceled or postponed.”
The LG defendants have made no showing that their legitimate interest would have been adversely affected had their counsel agreed to a short adjournment of Torres’s deposition to permit the plaintiff’s attorney to attend and participate. Hence, there is no basis for counsel’s insistence, in response to the plaintiff’s request for an adjournment, that the deposition had to proceed on March 29, 2021 because his clients had “instructed” him not to change the date.
Pursuant to the Rules of Professional Conduct, an attorney is required to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.4[a]) and “abide by a client’s decisions concerning the objectives of representation” (Rules of Professional Conduct [22 NYCRR 1200.0], rule 1.2[a]). Nonetheless, a client has no absolute right to “instruct” an attorney as to whether to grant an adjournment of a deposition or as to other minutiae of litigation unless a substantive right is involved, and a lawyer has no absolute obligation to comply with that instruction where countervailing considerations are present. As the rules recognize, “[a] lawyer may exercise professional judgment to . . . accede to reasonable requests of opposing counsel, when doing so does not prejudice the rights of the client” (Rules of Professional Conduct [22 NYCRR 1200.0], rule 1.2[e]). Moreover, a lawyer does not violate his or her obligation to a client “by treating with courtesy and consideration all persons involved in the legal process” (Rules of Professional Conduct [22 NYCRR 1200.0], rule 1.2[g]). Indeed, a mere “ ‘dissatisfaction with reasonable strategic choices regarding litigation’ ” does not “ ‘as a matter of law, constitute cause for the discharge of an attorney’ ” (Doviak v Finkelstein & Partners, LLP, 90 AD3d 696, 699 [2d Dept 2011], quoting Callahan v Callahan, 48 AD3d 500, 501 [2d Dept 2008]; see Morrison Cohen Singer & Weinstein v Zuker, 203 AD2d 119, 119 [1st Dept 1994]).
It concluded that “the refusal by counsel for the LG defendants to accede to a reasonable request for an adjournment of the Torres deposition, under the circumstances presented here, violates the spirit, if not the letter, of the Standards of Civility.”
While the court declined to impose the sanction of precluding the witness’s testimony – since the defendants complied with the CPLR’s timing provisions – it directed defendants’ counsel to provide plaintiff’s attorney with the witness’s contact information and any written communications between the witness and the defendants, and permitted the plaintiff’s attorney to subpoena the witness for an additional nonparty deposition, with the costs of serving the subpoena and conducting the deposition to be borne by the defendants.