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Ethics Opinions Every South Carolina Attorney Should Know: Part III, Mistreating Witnesses

I have never understood why Harvey Golden developed a reputation as the seminal attorney in the development of South Carolina family law.  However the man clearly had impact.  Family court judges rarely discuss their views of individual attorneys with other attorneys (I am told they frequently talk about individual attorneys with other judges) yet within the past year two family court judges have spontaneously brought up Mr. Golden.  One judge would have ranked Harvey in esteem somewhere between Moses and Albert Einstein; the other judge’s rank was somewhere between that of Adolf Hitler and Osama Bin Laden.

I only met Mr. Golden once when I saw him speak at a Hot Tips For Family Law Attorneys seminar for the South Carolina Bar.  He gave a pointless, unfocused and interminable speech that profusely bled into the next speaker’s allotted time.  I watched with a combination of unbearable boredom and slack-jawed awe: here was an attorney more in love with the sound of his own voice than I am with mine.

Harvey’s love of the sound of his own voice eventually contributed to his legal-ethics troubles. In the Matter of Harvey L. GOLDEN, 329 S.C. 335, 496 S.E.2d 619 (1998), gave Harvey a public reprimand for his ugly conduct during two depositions.  The offensive conduct in the first deposition includes:

(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]: It’s 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.

(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 1st 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 1st.

[Attorney]: And no longer New Years Eve, is it?

(15) [Attorney]: Did you fight them?

[Smith]: Huh?

[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?

After the conclusion of the second deposition, Golden told the witness:

“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 the witness] is a big bag to put her in without the mouth cut out.”

The Hearing Panel, which had an opportunity to hear first-hand the testimony of the witnesses, summed up Golden’s actions in the following way:

[Attorney’s] conduct … exemplifies the worst stereotype of an arrogant, 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.

The Supreme Court agreed with the Hearing Panel’s assessment.  It noted:

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. Although Mr. Smith was a hostile witness, 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.

The Court took this case as an opportunity to:

remind the Bar that although a deposition is not conducted in a 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.

I have only dealt with one attorney in my career who bullied witnesses to establish his own authority.  I assume Harvey’s demeanor was similar, which leads me to conclude that the later judge’s assessment of Harvey’s character was more accurate than the first judge’s.  My understanding is that Golden is one of the cases that led the Supreme Court in 2003 to amend the lawyer’s oath to include a vow of “civility” towards “opposing parties and their counsel.”  In 2004, the Supreme Court amended Rule 7 of the Rules for Lawyer Disciplinary Enforcement to make it a “ground for discipline” to “violate the oath of office taken to practice law in this state and contained in Rule 402(k), SCACR.”

The lesson of Golden: zealous advocacy never involves treating others with discourtesy.

  • I knew Harvey Golden from September 1966 until his death and I loved him. Harvey was not a saint but he was a good person and a good lawyer. The remarks Harvey made at that deposition were unfortunate and he probably deserved the public reprimand; however, that deposition was taken in York County and people who were present told me that the opinion of the Supreme Court did not tell the entire story, that the provocation was great and that the statements and questions were not as bad as they sound when taken in the proper context. My guess is that if you ask the people who knew Harvey best, people like Judge Garfinkel, Mark Taylor, and Ken Lester, they will give you the reasons he was admired and loved by most of his colleagues and contemporaries.

    Most of us have our faults both as lawyers and as people. My greatest moment of shame is found at 291 SC 468, 354 S.E.2d 383 (1987). Sufficient examples of inappropriate conduct are available among the living so that it should not be necessary to gratuitously attack the dead.

    I work hard of my seminar preparations and I get many favorable comments; however, I also get some negative comments and ratings of one on a scale of one to five with one being the worst. I hope that my children are not reading criticisms of my seminar presentations after my death.

    I learned a lot from Harvey Golden and one of the things Harvey taught me was loyalty.

    • Thomas:

      I chose this case for three reasons: First, it would do more harm to attack a living attorney for such conduct than to attack a deceased one.

      Second, it is the only opinion I am aware of in which an attorney’s uncivil behavior towards a witness in a deposition was grounds for discipline.

      Finally, note footnote 3 of the opinion: “Attorney testified he deliberately attempted to provoke Smith into an outburst so as to damage Smith’s credibility.” I know attorneys who think the way Harvey thought–if I can make others miserable, I can help my client’s case–and I hate practicing with those attorneys. Enough people who knew Harvey have the opinion that this was the routine way he thought about the practice of law and even his advocates don’t tell me differently.

      To countenance zealous advocacy that fails to protect the dignity of all concerned is to destroy the very values that makes law so special. I would contend that an attorney whose standard practice is to provoke witnesses during depositions (when there is no judge and sometimes no counsel to protect the witness) is not a worthy role model.

      • John Boudreaux

        Mr. Golden is not guilty of what you refer to as badgering a witness. You obviously don’t have all of the facts . If you did, you would have seen a different view of Attorney Golden . Yes. He was tough, but always within the parameters of the Bar Association . You concluded that the opinion of the second judge was more accurate, I am an advocate for the man and believe that you sink to the lowest level in going after a person after their death. If anyone deserves a reprimand, it is you .

    • John Boudreaux

      Harvey Golden was a great attorney. He always fought for the truth and I believe had the greatest respect for the law and the truth.
      I was not there, obviously, for the ” Smith deposition, so I cannot testify whether he misbehaved in that deposition. I have witnessed many other depositions that Mr. Golden took, and not once, even with the most belligerent witness, was he ever anything but courteous. To have anything aimed at discrediting an attorney who has died is in my opinion not characteristic of the SC Bar Association.

  • Todd Manley

    Without taking a hard “position”, as I did not know Mr. Golden, I believe that most of us who have litigated throughout our careers have had a moment (or many moments) of anger/frustration when we have said something inappropriate, rude, and/or offensive to an opposing party or witness. This imperfection is part of what makes us human, but does not necessarily defines one’s character. Without knowing Mr. Golden’s character specifically, It would seem that, in this context, the primary differences between most of us and Mr. Golden are that (1) his comments were all on the record, (2) a grievance was filed, (3) this deposition dealt with particularly offensive, inflammatory language, and (4) his comments became public record for all to judge him on.

    • Todd:

      You sell yourself short. I have practiced against you for years and you are a most worthy adversary. However, I have never seen you treat any party, witness, counsel, judge or court personnel with anything but the utmost dignity. My perception from reading the disciplinary opinion and hearing from others I respect is that Mr. Golden did not practice this way.

      The very values of graciousness that you exhibit as an attorney make you one of the best (and most popular) mediators in the LowCountry. However, I do not believe you ever felt that such grace made you a less zealous advocate for your clients.

      You epitomize what is best about our profession; an attorney who would ever act as Mr. Golden did in these depositions is completely antethical to your philosophy of practice.

      • Todd Manley

        Greg:

        Thank you for the kind comments. Perhaps the real ethical issue is this: was this particular behavior by Mr. Golden an abberation or an example of how he treated parties/witnesses?

        • Enough people I trust and highly regard have told me this was his standard procedure to make me believe these two depositions were not aberrational.

          • John Boudreaux

            Well, your research didn’t go very far. You sound as a bitter, jealous and far less competent person and attorney than was Mr. Golden . What possible good can come from attackind a dead person who cannot defend them self ??? May God forgive you for what you have done. Harvey would have forgiven you. He is now in heaven.

  • Cheryl Dolan

    Because of my own experience dealing with the South Carolina Judicial system, I have seen first hand how corrupt this system is! During my divorce, fraudulent documents were prepared and used in court. That is only one of a long list of felonies that were committed and accepted during my divorce, both by my ex-husband’s attorney, but by my own attorney as well, and now after several years of searching for the truth, the judge was involved as well. Now, after hiring an attorney in August, 2008 to help me get the finances and assets that were awarded to me in December, 2006, this attorney “sat” on my case and all information that proved fraud and a number of felonies that were committed by all legal parties during my divorce until the statute of limitations had run out. The corrupt deeds that were committed by the attorneys as well as my ex-husband astound me! I was so naive when we were in court, I honestly believed that when a person raises their hand before God and the Court, they actually had to tell the truth. I was shocked at the amount of purgery. With the judge having six boxes of legal documents that he said he had to read before he could make a decision on the assets and alimony, I left the courtroom believing in truth and justice.
    Being shocked at the judge’s decision puts it mildly! It was ludicrous what not only happened in the court room, but the judge’s decision on the division of assets. My ex-husband had been given $900,000 during our separation toward equitable distribution. He received the $900,000 when he sold our home that we built and raised our four children in to purchase a home for his girlfriend in St. Simons, Ga. In return for the $900,000 he received, he signed a document that he was to put our summer home in N.C. in my name. He received the $900,000 but never transferred the title of our home in N.C. into my name. I paid the taxes on our home in N.C. for two years, plus every bill that had to do with “my” home. When my ex-husband would send me the tax bill or any other bill, I would call him to inquire why his company’s name was still on every bill, his reply was the home was in my name, but there was a delay by each company, including the government (per taxes) in receiving the transfer. Naively believing him, I continued to pay all the bills including the taxes,
    To my absolute shock, in the divorce decree, there was no mention of the $900,000. my ex-husband had already received, but the judge ordered my home in N.C. be sold and the proceeds divided. I could write a book just about the illegal documents prepared for the sale, the fact that the attorney handling the closing no longer has any record of ever handling the closing of my property. The fact that the judge ordered all documents pertaining to the final decree be signed by both parties, my ex-husband, listed, sold and closed and the property not only without my signature, but without my knowledge! But in Oct., 2007 my husband’s attorney had a judge sign a warrant for my address if i did not immediately wire to his personal account, $168,000. which he told the judge was for the taxes on the sale of my home. In later discovery, I found documentation that proved I paid over $340,000 in taxes for the sale of my property, plus the $168,000 that obviously was my ex-husband’s attorney fees. Even though the opposing attorney promised the judge that the IRS would receive the monies under my name, the IRS states that I did not pay any taxes at all in 2007.
    My divorce was based on the infidelity of my husband of 28 years. I was not even awarded attorney fees! The attorney I had during the final divorce (which he had my case only 8 months) made $86,000.!
    I have now paid close to $200,000 in attorney fees trying to get help. I should have just thrown the money into the wind. I want the truth told, I want what happened to me to never happen to anyone else in this state. This is only the tip of the iceberg of everything that happens and is still happening. I have discovered that the corruptness of the legal system is South Carolina goes very deep and wide in this state. My life has been threatened, even the lives of my children. But I will not be silent any longer. This corruptness will be exposed. There will be many people exposed, there will also be shocking truths revealed that for years many people have done anything and everything to keep these facts secret.
    I realize that all this seems ludicrous, but on my life, they are as true and real as the crimes that have been committed. Crimes, people will see go much further that Family Law!

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