S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Harvey L. Golden, Respondent.
Opinion No. 24747
Heard July 8, 1997 - Filed January 19, 1998
PUBLIC REPRIMAND
J. Mark Taylor, of Kirkland, Wilson, Moore, Allen, Taylor &
O'Day, P.A., of West Columbia; David H. Wilkins, of Wilkins &
Madden, P.A., of Greenville; and John P. Freeman, of Columbia,
all for Respondent.
Attorney General Charles Molony Condon and Senior Assistant
Attorney General James G. Bogle, Jr., of Columbia, for
Complainant.
PER CURIAM: In this attorney grievance matter, the Respondent
Harvey L. Golden ("Attorney") is alleged to have committed misconduct by
making gratuitously insulting, threatening, and demeaning comments in the
course of two depositions. It is alleged that Attorney's conduct violated Rules
4.4 and 8.4 of the Rules of Professional Conduct, Rule 407, SCACR, and
section 5 of the Rule of Disciplinary Procedure, former Rule 413, SCACR.
Attorney denies any misconduct. He contends his actions during the
depositions were reasonable and necessary to obtain responses from hostile
witnesses. Attorney further asserts his comments after one deposition were
merely intended to be humorous.
Two members of the hearing Panel found misconduct as alleged and
recommended attorney be privately reprimanded for misconduct; one Panel
member recommended the matter be dismissed. The Interim Review
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In The Matter of Golden
Committee unanimously adopted the findings of fact and conclusions of law
set forth in the majority's Panel Report. As to the sanction, all committee
members participating1 recommended some form of public sanction. Three
voted that Attorney be suspended from the practice of law for thirty days;
three voted that he be publicly reprimanded. After hearing arguments of
counsel, reviewing the record, including the court reporter's tape recording of
one of the depositions, and considering the applicable law, we find the
appropriate sanction is a public reprimand.
FACTS
Smith Deposition
Attorney represented Mrs. Doe in a divorce action.2 Pursuant to a
temporary order, Mrs. Doe was receiving alimony. Attorney advised Mrs. Doe
she could jeopardize her alimony if she had a boyfriend prior to her divorce.
Mrs. Doe ended her relationship with Mr. Smith, apparently as a result of
this advice. Thereafter, Mr. Smith contacted Mr. Doe's attorney and
informed her he was having an adulterous relationship with Mrs. Doe. Based
on this information, Mr. Doe filed a motion to terminate Mrs. Doe's alimony.
Attorney noticed Mr. Smith's deposition.
In December 1994, Attorney deposed Mr. Smith. Smith was not
represented by counsel at the deposition. He was a retired school teacher
who had been hospitalized for emotional problems on six occasions within the
previous fifteen years. He suffered from several disabilities including injuries
to his lower back as the result of an automobile accident, debilitating
migraine headaches, and bipolar affective disorder for which he was being
treated with a series of psychotropic medications. The witness's physical and
mental disabilities were fully known to Attorney who agreed that Smith was
not mentally well.
We have reviewed both the written transcript and the audio recording
of the deposition. The following are a few examples from the deposition
transcript that illustrate Attorney's conduct at the deposition:
1One member of the Interim Review Committee did not participate in
this matter.
2Due to the sensitive nature of these matters, pseudonyms have been
used.
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In The Matter of Golden
(1) [Attorney]: And who was your lawyer in your first
divorce?
[Smith]: Me.
[Attorney]: Was that because you are cheap or you
think you are smart enough to be your
own lawyer? Is that what you think?
[Smith]: What kind of a question is that?
[Attorney]: Its a good question.
(2) [Attorney]: I don't need criticism from you. You ain't
nearly as good as I am about answering
questions or asking them. Just answer
my questions, mister.
(3) [Attorney]: Don't get snide with me. Just answer my
questions or you are going to be in severe
difficulty, especially if you make me
angry at you. I'm not going to try to get
angry with you. Just answer my
questions.
(4) [Attorney]: You are coming across as an absolutely
ridiculous person. But that's okay, you
will learn the hard way.
(5) [Attorney]: You are not smart enough to question my
questions. You are not smart enough to
even answer my questions. But do the
best you can.
(6) [Attorney]: Do you understand English? I speak real
clear English.
(7) [Attorney]: You -- you must understand that this is
not just a test of your telling the truth,
this is also a test of your reasonableness.
And whether you flunked or not is not
going to be subject of my discussion here
at this time.
(8) [Attorney]: And if you keep your mouth shut I might
get on to [the] next question.
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In The Matter of Golden
(9) [Attorney]: You are going to jail if you are an
obstructionist in this State here, and
especially if you are lying.
(10) [Attorney]: Well, I am not going to argue with you.
You are not smart enough to argue with.
(11) [Attorney]: No, you don't tell me how to ask
questions. We just take your answers
down and we'll deal with you with the
judge. See, and then we will see how
smart you are.
(12) [Attorney]: You are just not smart enough to know
what a restraining order is.
(13) [Attorney]: So you think it is your scintillating
personality that caused him to want to
play chess with you?
(14) [Attorney]: And when was that?
[Smith]: When was that? It was more than once.
The first night was New Years Eve.
[Attorney]: What year?
[Smith]: It was, it was the New Years Eve we left
the party.
[Attorney]: What year?
[Smith]: I would say it was January lst 1994 was
the first time we ever did it.
[Attorney]: 1994?
[Smith]: Uh-huh. (Indicating yes).
[Attorney]: That's not New Years Eve. January first
is not New Years Eve.
[Smith]: I know but see the clock goes through
12:00. And when it goes past twelve
then it is the next day, which makes it
January lst.
[Attorney]: And no longer New Years Eve, is it?
(15) [Attorney]: Did you fight them?
[Smith]: Huh?
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In The Matter of Golden
[Attorney]: Did you fight them?
[Smith]: No, I didn't fight them.
[Attorney]: Okay. So they didn't need five, they just
needed one, right?
[Smith]: I bit one.
[Attorney]: Why did you bite him?
[Smith]: 'Cause I was hungry.
[Attorney]: Okay. Where did you bite him?
[Smith]: (sigh) He had his foot - -
[Attorney]: Where did - -
[Smith]: - - in my --
[Attorney]: I didn't say why. I - -
[Smith]: Okay.
[Attorney]: -- Asked you where did you bite him?
[Smith]: Okay. Somewhere around his ankle. It
was right on top of my face.
[Attorney]: Uh-huh. And was that because you were
trying to fight them?
[Smith]: If you had been there I would probably
bite you, too.
[Attorney]: No, I'd shoot you before you could bite
me.
[Smith]: Oh.
[Attorney]: Guaranteed. Guaranteed.
(16) Attorney referred to Smith, who had been a patient at Charter
Hospital, as an "inmate" of the hospital.
(17) Smith injured his back moving a box of books while preparing for the
school year. Attorney asked Smith, who was a teacher, if he was the janitor:
[Attorney]: You are not a janitor, are you?
[Smith]: Huh?
[Attorney]: You are not the janitor, are you?
[Smith]: Gee, now what kind of question was that?
....
[Attorney]: ... When you said you get the desks in
order, that's something for the janitor to
do, get the desks in order?
Attorney testified the purpose of Mr. Smith's deposition was to destroy
Mr. Smith's credibility. He denied he had any intent to embarrass, delay, or
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In the Matter of Golden
otherwise burden Mr. Smith, or to pollute the administration of justice.
Attorney admitted he made some mistakes in the deposition. For instance,
he stated he allowed Mr. Smith to "get to him" and admitted he should have
set the tone for the deposition.
Jones Deposition
In May 1994, Attorney, who was representing Mr. Jones, deposed Mrs.
Jones, the adverse party in a domestic proceeding. Mrs. Jones's attorney was
present during the course of her deposition, although some of the alleged
comments by Attorney took place off the record when her attorney was not
present.
The grievance complaint alleged that after the deposition, Attorney
stated to Mrs. Jones: "You are a mean-spirited, vicious witch and I don't like
your face and I don't like your voice. What I'd like, is to be locked in a room
with you naked with a very sharp knife." Thereafter, it is alleged that
Attorney said: "What we need for her [pointing to Mrs. Jones] is a big bag
to put her in without the mouth cut out."
At the Panel hearing, Mrs. Jones testified as follows regarding
Attorney's comments after the deposition:
. . .It was at the end, and the court reporter was beginning to
put her things away. [Attorney] pushed all of his papers at me
like that, and he leaned across the table, and he pointed his
finger, and he said, "You are a meanspirited, vicious witch, and
I don't like your face, and I don't like your voice, and what I
want," and at that point he stood up, and he screamed, "What I
want is to be locked in a room naked with you with a sharp
knife," and I said, "Naked?" He said, "Yes, naked with a sharp --
locked in a room naked," and I said "Uh," . . . I then said to
[Attorney], "What? Naked? What are you going to do? . . ." And
he said, "No, I will kill you with the thing." And at that point
..., the paralegal for [opposing counsel], came in . . . and
[Attorney] then pointed ... and he said to [the paralegal], "what
we need for her is a big bag to put her in without the mouth cut
out."
Opposing counsel's legal assistant testified that during a break in the
deposition, she entered the conference room to give opposing counsel a note.
She testified she heard Attorney state that he would like to put a plastic bag
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In the Matter of Golden
without any air holes over Mrs. Jones.
In his answer, Attorney "adamantly denie[d]" making the "big bag"
comment. However, during the Panel hearing, he admitted making the "big
bag" comment, but stated Mrs. Jones took it out of context. Secondly, he
contended that he had jokingly said that the only way the matter could be
resolved would be to lock Mr. and Mrs. Jones naked in a room with a knife
on the table and let the better participant emerge triumphant.
ANALYSIS
With regard to the Smith matter, the Hearing Panel concluded that
Attorney's actions demonstrated
his total disregard and failure to show any respect for the rights
of a third party. The extent, the intensity, the sarcasm and
maliciousness, the unnecessary combativeness, the gratuitous
threatening and intimidation, and the unequivocal bad manners
of [Attorney's] conduct could have been for no purpose other than
to embarrass or burden [Mr. Smith].
The Panel found Attorney's conduct in the Smith deposition violated
Rule 4.4 of the Rules of Professional Conduct, Rule 407, SCACR. Rule 4.4
provides, in part: "In representing a client, a lawyer shall not use means
that have no purpose other than to embarrass, delay, or burden a third
person . . . ." The Panel concluded Attorney had no legitimate purpose for
his conduct. We concur with the Panel's analysis.
Attorney's words speak for themselves. Even if we assume that the
deposition witness was uncooperative, Attorney would not be justified abusing
this witness in the manner illustrated above. The record further shows that
Attorney interrupted Smith on numerous occasions. Moreover, the audio
recording reveals the volume of Attorney's voice was repeatedly loud, and his
statements were sarcastic, rude, or otherwise inappropriate. He acted in a
threatening and demeaning manner. His conduct was outrageous and
completely departed from the standards of our profession, much less basic
notions of human decency and civility.
While attacking a witness's credibility is a legitimate and often
necessary objective, Attorney's conduct at the Smith deposition went far
beyond this purpose. We find Attorney's bullying of a mentally unstable
witness in the Smith deposition an utterly inappropriate trial tactic.
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In The Matter of Golden
Although Mr. Smith was a hostile witness,3 Attorney's behavior was
unwarranted. If he truly thought Mr. Smith was intentionally being
unresponsive and recalcitrant, Attorney could have recessed the deposition
and moved the family court for an order requiring Mr. Smith to respond
appropriately. We find, by clear and convincing evidence, that Attorney used
means that had no purpose other than to embarrass, delay, or burden a third
person. Thus, he has violated Rule 4.4 by his conduct at the Smith
deposition.
With regard to the Jones deposition, the Panel concluded Attorney had
commented off the record that Mrs. Jones was "mean spirited," that someone
should be "locked in a room naked" with her, and that he would like to put
a bag over her without a hole for her mouth. They found that Attorney
made these comments in an agitated tone of voice. The Panel did not believe
these comments were an attempt at humor, but rather, the Panel found
Attorney's comments were intended to be insulting and degrading. It
concluded that Attorney's conduct tended to pollute the administration of
justice and to bring the legal profession into disrepute. This conclusion was
reached based on testimony of Mrs. Jones, of the legal assistant, and of
opposing counsel who overheard Attorney saying "mean spirited" and "locked
in a room naked." Moreover, Attorney's credibility was damaged by his self-
contradiction as to the "big bag" comment. Initially, he adamantly denied
making the comment, but he later claimed at the Panel hearing that the
comment was taken out of context. We fully agree with the Panel's
conclusions. We find Attorney's comments after the Jones deposition could
not possibly be interpreted as humorous, particularly in light of the serious
nature of the issues and highly charged atmosphere of the deposition.
Attorney's comments only served to insult an adverse party. Rule 8.4 of the
Rules of Professional Conduct, Rule 407, SCACR, is violated when a lawyer
engages in conduct prejudicial to the administration of justice. See also Rule
413, parag. 5.D, Rule on Disciplinary Procedure. We find, by clear and
convincing evidence, that Attorney violated these rules by his misconduct at
the Jones deposition.
We remind the Bar that although a deposition is not conducted in a
3 The transcript and tape recording indicate Mr. Smith was suspicious
and often difficult; at times, Mr. Smith yelled and once threatened to turn
over the conference table. This outburst took place after Smith had been
repeatedly ridiculed and bullied by Attorney. Attorney testified he
deliberately attempted to provoke Smith into an outburst so as to damage
Smith's credibility.
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In The Matter of Golden
courtroom in the presence of a judge, it is nonetheless a judicial setting.
Because there is no presiding authority, it is even more incumbent upon
attorneys to conduct themselves in a professional and civil manner during a
deposition.
SANCTION
The ultimate authority to discipline attorneys and the manner of
discipline rests with this Court. In re Dobson, III, 310 S.C. 422, 427 S.E.2d
166 (1993). Analysis of the instant case reveals conduct much more egregious
than a previous matter wherein we imposed a public reprimand for similar
behavior. In re Goude, 296 S.C. 510, 374 S.E.2d 496 (1988) concerned a
young attorney's misconduct at a sentencing hearing and outside a courtroom,
where he made insulting remarks towards a child victim in a criminal
matter. We publicly reprimanded the attorney, finding his conduct violated
DR 7-106(C)(6), which prohibits a lawyer from engaging in undignified or
discourteous conduct degrading to a tribunal, and DR 1-102(A)(5) and (6),
which prohibit conduct prejudicial to the administration of justice and which
adversely reflects on fitness to practice law.
Attorney's actions in the present case are much more reprehensible
than that which we sanctioned in Goude. Here, we do not have a single
incident, but two separate matters involving different parties and different
depositions. Here, we do not have a momentary loss of cool, but rather, a
repeated pattern of misconduct over the course of an entire deposition. Here,
we do not have a few negative remarks, but rather, comment after comment
-- seventeen of which are set forth above in connection with the Smith
deposition and two of which are delineated as to the Jones deposition --
intending to intimidate and harass. Here we do not have an inexperienced
attorney, but rather an attorney who has been practicing for over four
decades.
The Panel, which had an opportunity to hear first-hand the testimony
of the witnesses, summed up Attorney's actions in the following way:
[Attorney's] conduct ... exemplifies the worst stereotype of anarrogant, rude, and overbearing attorney. It goes far beyond
tactical aggressiveness to a level of gratuitous insult,
intimidation, and degradation of the witness. It is behavior that
brings the legal profession into disrepute.
We agree.
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In The Matter of Golden
Attorney urges us to impose no sanction in this matter. Alternatively,
Attorney argues that any sanction be mitigated by his experience and
standing in the profession, his health problems for the past several years,
and his lack of disciplinary history until recently. We approach attorney
discipline matters with a heavy heart, especially in a case such as this one.
Attorney has been a prominent and productive member of this state's bar for
over four decades. He has been a leader nationally in the establishment of
standards for the practice of domestic and family law. He has encouraged
and mentored several generations of highly skilled and respected family law
practitioners, including his two lead counsel in this matter who have so
eloquently presented his case. We do take all of these factors into account.
Nevertheless, we cannot utilize a different set of sanctions for misconduct
committed by a lawyer of high standing and long experience, than that
utilized when similar misconduct is found in a young and inexperienced
practitioner.
We find that a public reprimand should be imposed for Attorney's
violations of Rules 4.4 and 8.4 of the Rules of Professional Conduct, Rule 407,
SCACR, and section 5 of the Rule of Disciplinary Procedure, former Rule 413,
SCACR. Attorney's acts are veritably prejudicial to the administration of
justice and undermine the very foundations of respect for the rule of law.
Accordingly Harvey L. Golden is hereby publicly reprimanded.
PUBLIC REPRIMAND.
C.J.
A.J.
A.J.
A.J.
A.J.
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