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.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman

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