The opinion of the court was delivered by: Chin, District Judge.
This case presents the question of when a lawyer crosses the
line from zealously
representing a client to abusing the legal process. The Second
Circuit recently observed that "determining whether a case or
conduct falls beyond the pale is perhaps one of the most
difficult and unenviable tasks for a court." Schlaifer Nance &
Co. v. Estate of Warhol, 194 F.3d 323, 340 (2d Cir. 1999). Here,
the conduct of Judd Burstein, Esq., counsel for plaintiff Rommy
Revson, was clearly and unmistakably "beyond the pale." Burstein
engaged in a pattern of offensive and overly aggressive conduct
that multiplied these proceedings and caused significant harm to
Robert W. Cinque, Esq., and his law firm, defendant Cinque &
Cinque, P.C. (the "Firm").
Those tactics included the following:
• writing a letter to Cinque threatening to "tarnish"
his reputation and subject him to the "legal
equivalent of a proctology exam";
• making a sham offer to settle by setting an
unreasonable deadline for Cinque to respond and
then immediately filing suit even though Cinque met
that deadline by indicating a desire to discuss
• publicly accusing Cinque of fraud without any
concrete evidence to support the claim;
• threatening to interfere with the Firm's other
clients, including (i) conducting an investigation
to identify those clients, (ii) contacting one or
more of the Firm's former clients, and (iii)
seeking permission to send a letter to all the
Firm's clients to inquire as to "experiences, good
or bad," with the Firm's billing practices;
• serving overly broad subpoenas, including a
subpoena for all the Firm's banking records and
even a subpoena seeking records from the golf
course where Cinque played golf;
• threatening to add a RICO claim;
• threatening to sue Cinque individually and to seek
discovery of Cinque's personal finances;
• threatening to send a letter to the Court accusing
Cinque of criminal conduct if he did not capitulate
to Revson's demands;
• making good on his threat to "tarnish" Cinque's
reputation by contacting a reporter some weeks
before trial, explaining that Revson had sued
Cinque for fraudulent billing, and giving the
reporter documents as well as names of former
• engaging in unfair tactics at trial, including
cross-examining Cinque in an unfair manner; and
• repeatedly attacking Cinque in an offensive and
demeaning fashion, including calling Cinque "a
lawyer who . . . has acted in a manner that shames
all of us in the profession," "a disgrace to the
legal profession," and an example of "why lawyers
are sometimes referred to as snakes," and accusing
Cinque of "engag[ing] in the type of mail fraud
that has led to the criminal conviction of other
attorneys," being so "desperate for money he
resorted to . . . extortion," and being "slimy."
Burstein's tactics turned what should have been a simple dispute
between a client and her attorney over the amount of a fee into a
difficult, unseemly litigation that was intended from the outset
to damage Cinque's reputation.
Burstein defends his actions by arguing that he was only doing
his duty, that he was only doing his best to represent Revson
zealously and aggressively, and that he always acted in good
faith and in an objectively reasonable manner.
Burstein did not act within the bounds of the law here. Rather,
he acted in bad faith and with reckless and utter disregard for
the harm that Cinque and the Firm would suffer as a result of his
Consequently, sanctions will be imposed against him. For the
reasons set forth below, sanctions will not be imposed against
Revson, although she will be assessed costs pursuant to
28 U.S.C. § 1920.
The following constitute my findings of fact and conclusions of
A. Revson's Relationship with the Firm
Revson is the inventor of the "scunci," sometimes referred to
as a "scrunchy," a cloth-covered, elasticized hairband that women
typically wear around ponytails. Millions of dollars worth of
scuncis are sold every year, and as the patent holder, Revson is
often in litigation to enforce patent and licensing rights.
In February or March of 1993, Revson was involved in an
arbitration in Philadelphia with L & N Sales & Marketing, Inc.
("L & N"). She was unhappy with her then-attorneys, and replaced
them with Cinque and the Firm.
By retainer agreement dated March 24, 1993 and executed by her
on March 25, 1993, Revson retained the Firm to represent her as
"litigation counsel" in connection with a dispute with L & N and
"generally" in connection with her activities as "creative
artist, inventor and patent holder." (PX 1).*fn1 The agreement,
which was signed by Cinque, advised Revson that Cinque's
"customary" hourly billing rate was $325 and that his brother,
James Cinque, billed at the rate of $300 per hour. The agreement
While we keep daily records of the time we spent
[sic], in fairness to you in this matter involving
the many issues which arise from the current dispute
with L & N our billing will take into account not
only the amount of time spent, but also the result
Of necessity, a fair amount of duplication of
attorney effort and time must take place, and I do
not believe it appropriate to charge you the full
rate for this. At the same time, if we are able to
achieve an outstanding result or substantial benefit
for you, then our billing would be adjusted
accordingly following consultation with you.
For almost five years, Revson and Cinque enjoyed an excellent
relationship. The Firm represented Revson on a number of patent
and licensing matters. Revson became perhaps the Firm's most
important client and over the course of nearly five years she
paid the Firm almost $400,000 in fees. The Firm never raised its
hourly rates and often charged Revson less than the amount of the
time calculated at the usual rates; the Firm reduced its bills by
some $50,000 over the course of 1996 and 1997. (Trial Tr. at
467-68, 667 (Cinque testifying that he told Revson about
reductions), 693-700; see, e.g., DX D, PP; but see Trial Tr.
at 246-47). On at least one occasion, after Cinque negotiated a
$300,000 licensing fee for Revson, he billed her on a percentage
basis — five percent of the $300,000 fee. (DX C & Trial Tr. at
Throughout the representation, the Firm provided bills and
other billing information to Revson. Many if not all of these
bills were also sent to Revson's accountants for their review.
(See, e.g., PX 2-4, 9-10, 13, 16, 18-19, 21-24; DX I, J; see
also Trial Tr. at 516-17, 690). At times, the Firm provided
Revson with detailed narrative descriptions and at times it sent
her the actual time sheets. (See, e.g., DX F, G, I; PX 2-11,
13, 14, 15, 16-24). In or about May 1997, Revson informed Cinque
that it was "not necessary" to send the time sheets; Cinque
confirmed this in a letter dated May 8, 1997, and advised Revson
that the time sheets would be available for her to review at any
time at her request. (DX EE).
The relationship between Revson and Cinque became more than
just a business relationship. As Revson described it:
He [Cinque] was like a brother that I didn't really
have. He was a friend. He and Jane [referring to Jane
Klein, Cinque's companion] were both friends. We had
a lot of fun times together.
(Trial Tr. at 62-63). At one point, Cinque and Klein visited with
Revson and her son and his girlfriend for ten days at a house
Revson had rented in Sun Valley. (Id. at 184, 465).
In or about February 1997, Cinque and Klein visited Revson at
her home in Florida for a working vacation. They were there for
several days and Cinque spent some portion of the time working
with Revson to prepare for the L & N arbitration. (Id. at
65-66, 516, 518-19). After Cinque and Klein left, Revson wrote
Cinque a note, which read as follows:
Sadness, tears, love, emptiness, and yet,
happiness, belonging and a strong sense of friendship
and family fill my heart as your little white car is
pulling away from my happy little orange cottage
(that you got me from Riviera).
Time flies when we are together. My happiest
moments are probably dinner, cocktails, and morning
greetings when you both are near. . . .
In my life, very few people have believed in me and
supported me and took the time out to understand me,
Both of you did! For this, I love both of you. .
One night at dinner, I had mentioned that I would
give you 10% (ten percent) of whatever you recover
for me from L & N. I want to unequivocally state
that is exactly what "the deal" is. You stood by me
and deserve it!
(DX E) (emphasis in original).
Revson was so pleased with the Firm's services that in early
October 1997, she presented Cinque with a Mercedes-Benz, adorned
with a red ribbon, as a gift. She did this in recognition of his
efforts in representing her, particularly with respect to the
licensing matter referred to in Revson's note as "Riviera." After
considering the propriety of accepting the car, Cinque decided he
had to decline it and he did so. (Trial Tr. at 526-29).
In the fall of 1997, Cinque negotiated, on behalf of Revson,
what the parties have referred to as the second Riviera
agreement. On December 4, 1997, the deal closed and the agreement
was executed at the Carlyle Hotel. The agreement provided for
Riviera to pay $2.4 million to Revson — $1.5 million was paid to
her at the closing and remaining $900,000 was to be paid over
three years. At the closing, Revson gave gifts to Cinque and
Riviera's attorney, Michael Weiss. (Trial Tr. at 502-03; see
also id. at 90-93).
The next morning, Cinque telephoned Revson, in part to discuss
whether she would be attending the deposition of a witness for a
pending matter involving L & N. During the conversation, he
raised the subject of the Firm's fee for its work with respect to
the second Riviera agreement. He referred to the ten percent
"deal" that Revson had agreed to with respect to L & N and
suggested that the Firm deserved a fee of a "little more" than
ten percent of the amounts to be paid under the second Riviera
agreement. Revson became upset and said she wanted to think about
it. (Trial Tr. at 505-07; see also id. at 93-96).
Cinque took the deposition in the L & N matter that day and
Revson attended. Cinque did not hear from Revson again until
December 10, 1997, when Revson called him together with Chuck
Woolston, her accountant. They discussed matters relating to
Riviera, but did not discuss the fee issue. (Trial Tr. at
The next morning, Cinque saw a fax from Riviera's attorney,
Michael Weiss, together with a copy of a modification agreement.
The fax was a letter from Weiss to Ronald Witkowski, a different
attorney whom Revson apparently consulted about the second
Riviera agreement, unbeknownst to Cinque. The fax noted that it
and the modification agreement were being sent to Witkowski for
his review at Revson's direction; no indication was given that a
copy was being sent to Cinque. (DX L).
Although Cinque had negotiated the second Riviera agreement, he
was unaware of the proposed modification agreement, and Revson
and Woolston had not mentioned it in the telephone conversation
the evening before. (Trial Tr. at 508). Cinque was upset by this
turn of events, both because he felt the proposed modifications
were unfavorable to Revson and because he believed Revson had
gone behind his back. (Trial Tr. at 509-10).
Cinque and Revson spoke at approximately 5:45 p.m. on December
11th. Cinque told Revson he believed she was giving away the
rights to Canada for "nothing." They also discussed the issue of
the Firm's fees for the second Riviera agreement, and the
conversation became heated. Revson finally said to Cinque,
"that's it, you are fired," and hung up the telephone. (Trial Tr.
at 509-10). Within a minute, a fax arrived at Cinque's office; it
was a letter from Revson terminating the relationship. The letter
stated in part as follows:
I write to inform you that I have decided to
discharge you and your firm as my counsel for all
purposes (including the L & N arbitration), and
replace you with Judd Burstein and the firm of
Burstein & Fass LLP. . . .
Upon presentation of the detailed billing statement
that I have been requesting for months, I will of
course promptly pay all time charges and
disbursements due and owing to your firm.
C. The Filing of this Action
The termination letter was drafted by Burstein, who had been
consulted by Revson a few days earlier. Burstein was on trial at
the time in St. Louis, but spoke to Revson by telephone several
times. On Friday, December 12, 1997, Cinque spoke briefly with
Burstein's colleague, Laurie McPherson. Cinque concluded that he
would have to speak with Burstein himself, and McPherson told him
that Burstein would communicate with Cinque at his earliest
convenience. (Cinque Decl. ¶ 3).*fn3
I am writing to you in one last effort to avoid
litigation that will inevitably tarnish your
reputation and, perhaps, reduce the size of your
wallet. I am therefore enclosing a copy of a
complaint, still being proofread and finalized, that
will be filed at Noon on December 15, 1997 unless we
can reach an agreement with respect to the release of
Ms. Revson's files and your claims for fees. . . .
I apologize in advance for the harshness of this
letter. I have no desire to fan the flames of an
emotional dispute. Nor do I have the desire to
conduct the legal equivalent of a proctology exam on
your finances and billing practices. Yet, I will not
hesitate to do so unless you begin to act in a
(Burstein 7/15/99 Decl., Ex. U). Burstein wrote this letter
without ever having spoken to Cinque.
Within hours, Cinque responded, faxing a detailed, four-page
letter to Burstein at noon on December 15th, the deadline set by
Burstein. (Cinque Decl. ¶ 7). Cinque's letter sought to
accomplish several goals. First, it sought to admonish Burstein
for the "inflammatory remarks" and "reckless"language he used in
his December 14th letter. Second, it sought to persuade Burstein
that the proposed complaint contained material misstatements and
omissions, in violation of Rule 11, and allegations that lacked
merit. Third, the letter sought to convey the message that Cinque
still cared for Revson and that he wanted to resolve the dispute
without litigation. The letter provided:
As I told Ms. McPherson when we spoke Friday
morning . . . I had a completely open mind as to how
best to resolve this disagreement while at the same
time avoiding unnecessary burdens and unpleasantness
for Ms. Revson.
It is a big mistake for Rommy through you to
inflame this already sensitive situation especially
where, as here, you recklessly make misstatements of
fact which cry out for a public response from me in
order to preserve my reputation which you threaten to
While Rommy might find this difficult to believe at
this moment, I am still one of her strongest
supporters and I truly regret that we had this
breakdown in communication at what should have been
one of the happiest times of our professional
relationship. . . .
In closing, let me say that while I find the
tactics in which you have engaged as offensive as
they are precipitous, and while I am prepared to
litigate these horrendous accusations vigorously, I
still have enough feeling for Rommy that under
appropriate circumstances I would be prepared to talk
with her to try and resolve a disagreement which
should never have escalated to this point. . . .
If Rommy wants to put all of this behind her
quickly and as painlessly as possible, I am prepared
to work with her so that we can do it. All she has to
do is call me.
On the other hand if she and you opt for litigation
calculated to tarnish my reputation, then you and she
should carefully consider the nature, basis and
accuracy of each of the accusations you make against
me — something that neither of you has done thus far
as I assure you I shall vigorously defend myself
against this outrageous conduct.
(Burstein 7/15/99 Decl., Ex. V).
Despite Cinque's expression of a willingness and desire to
discuss resolving the dispute with Revson, neither Burstein nor
Revson called him. (Cinque Decl. ¶ 9). Instead, the very next
day, this action was filed.
D. The Allegations Against Cinque
On December 19, 1997, Revson submitted an affidavit in support
of a motion for a preliminary injunction requiring the Firm to
turn over her files. (Cinque Decl., Ex. C). The affidavit
contained numerous inaccuracies. For example, the affidavit
incorrectly alleged that the Firm had refused, despite Revson's
requests, to provide time records or an "intelligible breakdown"
of bills. (Id., Ex. C, ¶¶ 1, 5). In fact, as the correspondence
shows, the Firm had provided Revson with contemporaneous time
sheets as well as detailed bills over the years. (See, e.g., DX
C, F, G, I; PX 2-11, 13, 14, 16-24). The affidavit incorrectly
alleged that the Firm had started representing her in 1994 and
that she had "no written retainer agreement," when in fact the
Firm had started representing her in February or March of 1993
and she had signed a retainer agreement on March 25, 1993.
(Cinque Decl., Ex. C, ¶ 2 & PX 1). The affidavit also suggested
that the Firm overbilled her because, as "a two lawyer firm," it
could not have billed "almost $400,000 in legal fees" over the
prior "three years" or "more than $150,000 in legal fees" over
the prior eight months. (Cinque Decl., Ex. C, ¶ 3).*fn4
Burstein did not know that Revson's statements were false when
they were submitted to the Court and he was entitled to rely on
Revson's statements to him.
On December 22, 1997, the parties appeared before Judge Rakoff
by order to show cause. The dispute over the release of the files
was resolved; Revson agreed to deposit certain funds in escrow,
and the Firm agreed to release the files to her new attorneys.
(Trial Tr. at 512-13).
On January 5, 1998, Revson filed an amended complaint. (DX U).
The amended complaint dropped the false allegations that the Firm
had refused to provide Revson with time records, but
significantly it added a claim of fraud, alleging, "on
information and belief," that the Firm's bills were "based upon
fraudulently over-inflated time charges." (Id. ¶ 1; see
Cinque Decl., Ex. D). The amended complaint also alleged "on
information and belief that [the Firm] has been sending, and
[Revson] has been paying, fraudulent time charge bills since
sometime in 1994." (Cinque Decl., Ex. D, ¶ 19). Finally, the
amended complaint also alleged that the Firm breached its
fiduciary duties to Revson by "submitting fraudulent bills" to
her. (Id. ¶ 28).
E. The Conduct of the Litigation
I conferenced the case on January 9, 1998. Cinque brought the
"proctology" letter to my attention. Burstein was not present,
but I expressed to his partner Robert Fass my unhappiness with
the letter. I did not impose any sanctions; I merely conveyed my
view that the language of the letter was inappropriate.
Burstein responded with a letter to the Court that read in part
Mr. Fass alerted me to Your Honor's concerns about my
letter to Mr. Cinque, dated December 14, 1997. I want
to assure Your Honor that I understand and respect
your views concerning the manner in which counsel
should communicate with opposing counsel and Your
Honor's views about aggressive hyperbole. While I
respectfully disagree with Your Honor on the issue of
attorney conduct, I nonetheless recognize Your
Honor's right to insist upon lawyers acting in
accordance with the Court's views on the issue. My
letter to Mr. Cinque, which I respectfully believe
was proper, was written before Your Honor was
assigned to the case. Had I known that Your Honor
would be the Judge in this case, I surely would have
toned down the language of my letter, as I would
never intentionally act in a manner contrary to the
Court's views on attorney conduct. The fact that I
respectfully disagree with Your Honor is irrelevant.
(Cinque Decl., Ex. F) (emphasis added). Burstein enclosed a copy
of a letter of apology that he had sent to Cinque and concluded
his letter to the Court as follows:
Again, I want to make clear that I in no way meant
any disrespect to the Court. Nor did I believe that
my letter would cause Mr. Cinque any real distress.
However, as expressed in my letter to Mr. Cinque, I
do apologize for any pain that I may have caused.
(Id.). Burstein's letter of apology to Cinque read as follows:
Recognizing and respecting Judge Chin's views as to
how counsel should interact with each other, I write
to apologize for any pain or upset I may have caused
by some of the harsher provisions of my letter to you
dated December 14, 1998. Although we may have great
differences, it is my hope that we can move past what
some may consider overly aggressive behavior on my
part, and conduct this case in the manner desired by
Judge Chin. I, therefore, want you to know that I see
no reason why we cannot deal civilly with each other,
and invite communication from you on the issue of
Within a few days, Burstein made clear his intent to probe
Revson's allegation of fraudulent billing. On January ...