When Does Zealous Representation Go Too Far and Become Unprofessional?

March 21, 2023

By: Stephen B. Stern

     In Wiegand v. Royal Caribbean Cruises, Ltd., Case No. 19-cv-25100-DLG (S.D. Fla. Apr. 21, 2021), the United States District Court for the Southern District of Florida addressed sua sponte what it “characterize[d] as unprofessional language” contained in various briefs filed by the plaintiffs and defendant in the case.  The court’s opinion illustrates that sometimes there can be a fine line between zealous representation and unprofessional advocacy.

     In Wiegand, the court received briefs from the parties in connection with the plaintiffs’ motion for partial summary judgment and the plaintiffs’ motion for sanctions.  The parties’ briefs included language that caught the court’s attention that the court found concerning, leading it to issue a sua sponte decision.

     In the plaintiffs’ motion for partial summary judgment, the court noted that the plaintiffs included an entire section titled, “ROYAL CARIBBEAN’S EGREGIOUS POST-INCIDENT CONDUCT” in which they accused the defendant company of “lying to authorities,” “attempting to deceive this Honorable Court,” and engaging in “corporate misconduct [which] . . . appears to know no bounds.”  The plaintiffs further accused the defendant’s captain of lying to the Coast Guard and accused the defendant of “doubl[ing] down on the Captain’s lie to the Coast Guard by again lying to a United States Federal District Court.”  The plaintiffs also contended that the defendant’s “lies” were “the genesis of the Puerto Rican authorities ultimately pressing (baseless) criminal charges against Mr. Anello” and ultimately accused the defendant of making “merciless efforts to frame an innocent man, intentionally destroying evidence, and mislead this Honorable Court (and the U.S. Coast Guard and the Puerto Rican authorities).”

     In the plaintiffs’ reply in support of their motion for partial summary judgment, the plaintiffs continued to accuse the defendant of “lying.”  The court noted the plaintiffs referred to “the disingenuously evolving nature of [the d]efendant’s false narratives” and “Royal Caribbean’s ever-changing stories [which] have consisted of Royal Caribbean lying to authorities, attempting to deceive this Honorable Court, and destroying critical CCTV evidence specifically requested by [the p]laintiffs’ counsel and the U.S. Coast Guard.”  The court further noted that these allegations were unrelated to the substance of the plaintiffs’ motion for partial summary judgment and were included in their motion for sanctions, making it appear that they were included in the motion for partial summary judgment briefs “solely for the inflammatory purpose of painting the [d]efendant in a negative light.”  The court described the plaintiffs’ filings as a “fictional novel or a script from a tabloid Jerry Springer television show.”

     The court further expressed “concern” about the language in the plaintiffs’ motion for sanctions.  In that motion, the plaintiffs argued that it was the defendant’s strategy to “[b]lame Chloe’s grandfather[,]” “[l]ie to authorities,” and “[d]estroy evidence specifically requested by [the p]laintiffs’ counsel and the Coast Guard[.]”  The court also noted that the first subsection of the motion was titled, “ROYAL CARIBBEAN’S LIES TO THE COAST GUARD.”

     The plaintiffs were not alone in using this language.  The court commented that the defendant “mirror[ed] the [p]laintiffs’ tone.”  By way of example, the court noted the defendant asserted “[i]t strains credulity that [the p]laintiffs’ counsel filed this motion out of a genuine belief that meritorious grounds exist to support summary judgment” and that the plaintiffs’ motion was “beyond disingenuous” as well as “a salacious, unfounded and libelous hit piece.”  The court further noted that the defendant “doubled down on these insults” by accusing the plaintiffs’ counsel of engaging in “highly questionable” tactics pursuing the claims and that it “strains credulity [that] the motion was based on a genuine belief that any sort of relief is warranted, much less a relief for sanctions.”

     The court commented that “[a] professional pleading does not cast aspersions toward attorneys, parties, or witnesses” and that “[t]he attorneys in this matter seem to have disregarded the tenets of professionalism and ethical conduct.”  The court cited to the Florida Bar Oath Admission, which states in relevant part that each attorney “pledge[s] fairness, integrity, and civility [to opposing parties and their counsel], not only in court, but also in all written and oral communications.”  The Oath further states that each attorney “will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which [the attorney is] charged.”  In addition, the court referred to the Florida Bar’s Creed of Professionalism, which provides in part that each attorney “will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy.”  Based on the parties’ filings, the court found that the “conduct displayed by counsel for both [the p]laintiffs and [d]efendant runs afoul of the tenets of professionalism set forth by the Florida Bar.”

     Based on these filings, the court sue sponte (on its own accord) ordered that each of the referenced briefs be stricken and that the parties refile their respective briefs within five days by omitting the “inappropriate language.”  The court further admonished the parties “to remain mindful of the ethical and professional expectations placed on all members of the Florida Bar . . . as well as the decorum demanded of all litigants before this Court.”

     While the court’s opinion in Wiegand may seem significant only to the parties and counsel in that case, it actually can serve as a learning tool on a broader scale.  In this regard, clients often urge their counsel to be “aggressive” in litigation, including in their characterization of the opposing party(ies) and counsel in briefs and at argument.  While this may be called for and appropriate at times, depending on the nature of the claims and allegations, the court’s decision in Wiegand illustrates how such conduct can morph from zealous representation (which an attorney is obligated to do) into inappropriate and unethical conduct.  Thus, when a client urges its counsel to hurl insults at an opposing party and/or its counsel, it may behoove the attorney to discuss with the client how such conduct has the potential to be counterproductive and harmful.