Jack Marshall

Commentary on Recent Developments in Legal Ethics

by Jack Marshall, President of ProEthics

 

When Does A Nasty E-Mail Exchange

Constitute Punishable Unethical Conduct?


Now we know—at least when Florida lawyers are concerned.

Tampa lawyer Nicholas F. Mooney  and Palmetto lawyer Kurt D. Mitchell received suspensions from the Florida Bar and the Florida Supreme Court after an escalating e-mail exchange that  continued over six months.

A lack of civility is considered a breach of professionalism in all jurisdictions, but not an ethical violation calling into question fitness to practice law—the standard for bar discipline—unless it is extreme, and usually not until there have been warnings issued. Apparently this particular spat was just too much for the Bar to take, perhaps because it reflects badly on the entire profession.

The war of words began in May 2008, with Mitchell representing a plaintiff suing Volkswagen of America. Mooney was the attorney for the automaker. After the two lawyers argued over  hearing dates, Mooney, who tweaked his younger adversary by calling him  “Junior, ” wrote,

“Please do not send me any more of these absurd emails. While I am happy to know that you are also the judge in this case, your continued unprofessional & juvenile behavior is not necessary.”

Rather than respond in a calm, respectful manner, reminding the lawyer that such sarcasm and insulting language were not called for, Mitchell took the bait, with gusto:

“Old Hack: Your unprofessional and otherwise asinine behavior is not necessary. Learn to litigate professionally and these issues will be avoided.”

This is known as “throwing gasoline on the fire.” The tone for the relationship was now established.

Later, after Mitchell accused Mooney of not being up the pressure of litigating, Mooney countered that his caseload included many cases that were “more important than these… claims that are handled by bottom feeding/scum sucking/loser lawyers like yourself.”

The climax of the exchange came on October 9, 2008. After another abusive e-mail from Mooney called him a “jerk, ” Mitchell responded,

“I do not think I deserve the jerk comment. I was actually on the internet trying to find out what type of retardism you have by checking your symptoms, e.g. closely spaced eyes, dull blank stare, bulbous head, lying and inability to tell fiction from reality, so I could donate money for research for a cure. However, apparently those symptoms are indicative of numerous types of retardism and so my search was unsuccessful…”

Mooney fired back,

“Thanks Sparky … more evidence of the jerk you are … the fact that I have a son with a birth defect really shows what type of a weak-minded coward you truly are. … I am sure your parents, if you even know who they are, are very proud of the development of their sperm cells … if you need to find the indications of “retardism” you seek, I suggest that you look into a mirror, then look at your wife — she has to be a retard to marry such a loser like you … Then check your children (if they are even yours. … Better check the garbage man that comes by your trailer to make sure they don’t look like him).

Mitchell’s rejoinder:

“While I am sorry to hear about your disabled child; that sort of thing is to be expected when a retard reproduces. … Do not hate me, hate your genetics. However, I would look at the bright side, at least you definitely know the kid is yours.”

Several questions suggest themselves after reading these communications:

  • Who reported the two to the Bar?
  • Do Mitchell and Mooney treat everyone this way?
  • How many other exchanges between lawyers reach this level of nastiness, in Florida and elsewhere? My guess: a lot.
  • Had the Bar been hearing about similar examples of incivility for years, and finally decided to take strong action in this instance to send a message to the rest of its membership? I think that is likely.

Finally, would this kind of exchange have even been considered unusual if the two lawyers were in New York?