September 16, 1996
FINDINGS AND RULINGS IN SUMMARY CONTEMPT PROCEEDING REGARDING ATTORNEY FREDERICK DIAMOND
As part of the afternoon motion session in Salem Superior Court on Wednesday, September 11, 1996, this Court heard various motions in the above-captioned case. The primary motion related to the defendants request (for a second time) to remove a default for failure to timely answer the amended complaint. Attorney Frederick Diamond represented the defendants in this matter. After conducting a hearing, I ruled in the defendants favor and allowed their motion to remove the default. Therefore, I did not proceed with the scheduled assessment of damages. In ruling in favor of the defendants, I cautioned the defendants attorney — Attorney Frederick Diamond — that my ruling represented a considerable degree of leniency for his clients. I reminded Attorney Diamond that I had already removed a previous default when he had failed to timely answer the original complaint in this matter and I noted that Attorney Diamond had failed to comply with various discovery requests in a timely fashion and had failed to comply with this Court's previous order that he pay sanctions (relating to a failure to comply with discovery) in the amount of $250. I stressed to Attorney Diamond that, in the future, he should make sure to comply with all court rules and court orders.
During this motion hearing, both Attorney Diamond and the attorney representing plaintiffs, Michael Smerczynski, were seated at the front table within the bar enclosure and directly in front of the bench. As the motion hearing concluded, I observed Attorney Diamond lean towards to Attorney Smerczynski and say something. I heard only a portion of what was said. The portion that this judge could hear was the term ass. Attorney Smerczynski immediately rose and addressed the Court. He inquired whether I had heard what Attorney Diamond had said. Attorney Diamond's statement was not made in a whispered manner. Indeed, my law clerk, who was sitting to the side of the bench approximately ten yards away from Attorney Diamond could hear the phrase stick it up your ass.
I then inquired of Attorney Smerczynski what Attorney Diamond had said to him. Attorney Smerczynski reported that Attorney Diamond had told him that he [Attorney Diamond] would now stick it up my ass. I then turned to Attorney Diamond and asked him what he had said to Attorney Smerczynski. Attorney Diamond first stated that this was a private, confidential communication with Attorney Smerczynski. I responded that it was not a private conversation but rather a statement made within the bar enclosure and in front of the Court. I then repeated my question to Attorney Diamond [i.e. what did you say to Attorney Smerczynski?]. Attorney Diamond then responded that he did not recall what he had said to Attorney Smerczynski. I find Attorney Diamond's response to the Court to be knowingly false.
Upon further inquiry of Attorney Diamond, Attorney Diamond admitted that he did recall what he said to Attorney Smerczynski. Attorney Diamond then said that he had stated that Attorney Smerczynski would now get discovery up the ying-yang. Having already heard the word ass I doubted Attorney Diamond. Therefore, I asked Attorney Diamond did he actually use the term ying-yang? At the point, Attorney Diamond admitted that he had not and that he had used the term ass. I instructed Attorney Diamond that I considered such conduct to be contemptuous and that as soon as I concluded the motion list I would hold a summary contempt proceeding.
Thereafter, I requested the court reporter to come up to the motion session. Normally, such motions as a motion to remove a default are not placed on the record. Therefore, a court reporter was not present during this initial exchange.
Once I concluded the motion list, I began the summary contempt proceeding. This proceeding was recorded by the court reporter. Based on the statements of Attorney Smerczynski, my own observations, and the admissions of Attorney Diamond, I find that Attorney Diamond stated to Attorney Smerczynski, in open Court, within the bar enclosure, and in front of the bench, and in a tone that could be heard by others attending the motion hearing, words to the effect that Attorney Diamond would now make sure to stick discovery up his [Attorney Smerczynski's] ass. I also find that Attorney Smerczynski has acted with upmost professionalism throughout this case. Far from provoking any such vulgar comment, Attorney Smerczynski consistently displayed admirable patience and restraint.
Attorney Diamond was provided an opportunity to explain or justify his conduct. I find Attorney Diamond's explanation completely inadequate. Attorney Diamond's explanation included his assertion that he was frustrated with this Court's rulings on his motions and thus responded in this fashion to Attorney Smerczynski. Even if Attorney Diamond was frustrated with the Court's rulings [which rulings were in his favor] such a crude, unprofessional and profane response to an opposing attorney is completely inappropriate. Attorney Diamond's other explanation is even more inadequate. Attorney Diamond stated that this type of language occurred between lawyers and was not remarkable. This Court does not pretend to determine what is considered civil discourse among opposing lawyers or society in general. It is clear, however, that such phrases and words as used by Attorney Diamond have absolutely no place in a court proceeding and are contrary to Attorney Diamond's professional obligation to behave in a dignified and courteous manner while before a judicial tribunal. See Supreme Judicial Court Rule 3:07 DR 7-106(c)(6). Likewise, his false response to the Court's question also violates the Code of Professional Responsibility. DR7-102 (A)(5). I find that Attorney Diamond's conduct was unprofessional, unprovoked, and without any adequate justification. This is not a situation where Attorney Diamond's conduct could conceivably be considered justified by the obligation to zealously represent one's client.
I also find that such conduct is indeed contempt of Court. Using abusive and vulgar language with an opposing attorney within earshot of the Court, during a motion session, and while within the bar enclosure does indeed effect the orderly administration of justice and cannot be tolerated. As result, I imposed the maximum fine of $500 in summary contempt proceeding.
As the transcript will indicate, I also find that Attorney Diamond's attempt to explain his comment to Attorney Smerczynski could be interpreted as a threat to engage in harassing and retaliatory discovery. Obviously, any party is entitled to legitimate discovery in a civil dispute. No party, however, is entitled to engage discovery simply for the purpose of harassment or retaliation. Should this Court find that Attorney Diamond engages in any such improper activity, further sanctions will issue.
_____________________________ Richard E. Welch III Justice of the Superior Court
DATED: September 16, 1996