The opinion of the court was delivered by: Chin, District Judge.
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.
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:
(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).
B. The Relationship Ends
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
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:
(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
(Cinque Decl., Ex. G).
Within a few days, Burstein made clear his intent to probe
Revson's allegation of fraudulent billing. On January 12, 1998,
he wrote to Cinque:
(Cinque Decl., Ex. H) (emphasis added, footnote omitted). An
exchange of letters followed, but the parties were unable to work
out their disagreements. In one of those letters, Burstein
informed Cinque that Revson had been conducting an "independent
investigation" into the identity of Cinque's clients. (Cinque
Decl., Ex. J).
I did not have to rule on the issue. At a conference on
February 17, 1998, the Firm advised that it was not going to rely
on an "innocent overbilling argument" and Burstein indicated that
consequently Revson would withdraw her request for Rule 404(b)
evidence. This tentative agreement was to be memorialized in a
stipulation, but no such stipulation was ever executed. (See
Burstein 7/15/99 Decl., Exs. PP, QQ).
On or about February 18, 1998, Burstein & Fass issued a
subpoena to the Republic National Bank requesting the production
of "[a]ll banking records in the name of Cinque & Cinque, P.C. .
. . from January 1994 to present." (Cinque Decl., Ex. L). The
subpoena in essence told Republic National Bank, with which
Cinque had had a banking relationship for twenty years, that the
Firm had been sued in federal court. (Cinque Decl. ¶¶ 23, 25). By
order dated March 10, 1998, I quashed the subpoena, but denied
the Firm's request for sanctions. (Cinque Decl., Ex. M).
In a letter to the Court dated March 11, 1998, Burstein
requested a conference to discuss certain discovery issues. He
proposed issuing a new, but more limited, subpoena to Republic
National Bank for the Firm's banking records and he again
expressed a desire to contact "past and present clients" of the
Firm (via a letter similar to the one he had suggested before) to
develop Rule 404(b) evidence. Burstein concluded his letter by
stating, in essence, that if a conference were not convened he
would assume that he was "authorize[d] . . . to take these steps
without the fear of sanctions." (Cinque Decl., Ex. N).
I did not schedule a conference. Burstein issued a second
subpoena on Republic National Bank on March 26, 1998 seeking all
"account statements" for the Firm for 1996 and 1997. (Cinque
Decl., Ex. O). On June 9, 1998, I issued an order quashing this
second subpoena and again denying the Firm's request for
sanctions. (Cinque Decl., Ex. P).
(Cinque Decl., Ex. Q) (emphasis added). Hence, at the same time
that Burstein purported to apologize again for the "proctology"
letter, he called Cinque "a lawyer who . . . has acted in a
manner that shames all of us in the profession." (Id.).
The draft letter that Burstein threatened to send to the Court
stated as follows:
(Cinque Decl., Ex. Q) (boldface in original, footnote omitted).
It goes on to describe the requested relief, which included leave
to amend the complaint to assert claims, including a RICO claim,
against Cinque individually. The proposed letter also sought
additional discovery, including discovery as to Cinque's personal
finances. It also stated:
(Id.) (emphasis added). The proposed letter contained a chart
that purported to show that sixteen of eighteen bills for the
period between February 1, 1996 and November 1997 were inflated,
by an average of approximately 18%. Although Burstein did not
provide a copy of the proposed amended pleading, his letter did
note that the proposed amended complaint would allege
"that Cinque & Cinque's other clients have been similarly
James Cinque responded on behalf of the Firm. He noted that he
had discussed the Firm's time-keeping records with Burstein's
partner, Robert Fass, at the outset of the litigation, and that
he had explained to Fass that the Firm recorded time in
increments of one-quarter of an hour. Moreover, James Cinque
pointed out that this had been the Firm's billing practice during
the five years it represented Revson, and that this procedure had
been explained to Revson and her accountants. (Cinque Decl., Ex.
On March 15, 1999, Revson moved (1) for partial summary
judgment dismissing the Firm's counterclaim to the extent it
sought, on a contractual basis, a percentage upward adjustment in
legal fees and (2) in limine for certain evidentiary rulings.
On April 19, 1999, about a month before the scheduled start of
trial, an article appeared in the New York Observer about this
case. See Matt Fleischer, Lawyer, Scunci Queen Tangle Over
Legal Fees, N.Y. Observer, Apr. 19, 1999, at 9. Revson is quoted
at length, and the article provides extensive details about the
dispute between Revson and the Firm. It reports that Revson had
asked the Court "to declare the bulk of Mr. Cinque's bills
fraudulent or unjustified." It also quotes two former clients of
the Firm. The article noted that Cinque had been contacted but
"declined to discuss details of the case," although Cinque did
provide some general comments. Cinque testified at trial that the
reporter told him that Burstein had contacted the reporter about
the case. Burstein gave the reporter a number of documents, some
of which were quoted in the article. (Trial Tr. at 673-75).
On May 3, 1999, I granted Revson's motion in part and denied it
in part. Revson v. Cinque & Cinque, P.C., No. 97 Civ. 9236(DC),
1999 WL 280419 (S.D.N.Y. May 4, 1999). I held that the Firm was
not entitled to a percentage recovery as a contractual matter
because contingency fee arrangements had to be in writing, and
the only writing that arguably set forth a contingency fee
agreement was Revson's handwritten February 12, 1997 note. The
note, however, only referenced L & N, and the Firm had been
discharged before the L & N matter was concluded. I held that the
Firm could seek an upward adjustment from its time charges on a
quantum meruit basis and that it could rely on the note in
arguing the reasonable value of its services. Id. at *1.
Immediately upon receipt of my decision, Burstein wrote Cinque
a letter, purportedly seeking to discuss settlement. In the
letter, Burstein predicted not only that the Firm would not
recover any additional fees but that the jury would award an
"additional fee forfeiture." In addition, Burstein wrote:
[I]f this case is not settled, Ms. Revson intends to
sue you for your malpractice (just discovered) in
failing to take steps to clear title to her Florida
home when she purchased it. That action will be
brought against you in Florida.
In sum, the time has come for you to act
responsibly. Just as I told you (too forcefully, I
apologetically concede) in December of 1997; you were
wrong about your right to a bonus on Riviera. You
will be proven wrong again if we go forward to trial
on the issue of your right to any of the escrowed
funds. Perhaps more importantly, I promise you that
you will regret subjecting
yourself to a public trial in which your conduct
will be subject to scrutiny which I do not believe it
can withstand. I strongly suggest that you cut your
(Cinque Decl., Ex. T) (emphasis added).
The case did not settle, and trial commenced on May 17, 1999.
F. The Trial
1. Burstein's Tactics
Burstein went on the attack right in his opening statement at
trial, calling Cinque "a disgrace to the legal profession."
(Trial Tr. at 6). He contended that in December 1997 Cinque was
so "desperate for money he resorted to . . . extortion." (Id.
at 9). He went on to say that the proof was "going to show that
there is a reason why lawyers are sometimes referred to as
snakes. It is this kind of conduct that gives lawyers a bad name
and it's disgraceful." (Id. at 17-18). Burstein concluded his
opening statement with the following:
There is an old joke about a little boy who's
walking by a cemetery, and he sees a gravestone and
it says, Here lies a lawyer and an honest man and he
turns to his mother and he says, Mommy, why did they
put two people in that grave? What you're going to
find in this case is [that it is] because of conduct
like Robert Cinque's that we have jokes like that,
that lawyers are held in such disrepute. . . .
I'm going to ask you . . . to make Robert Cinque
pay a heavy penalty in the form of damages and fee
forfeiture for his horrendous conduct, for his
horrendous breach of professional ethics, horrendous
breach of Rommy Revson's trust.
(Id. at 19).
In summation, Burstein returned to the theme, contending that
"the reason why lawyers are held in such low repute is [the] kind
of conduct" purportedly engaged in by Cinque. Indeed, he called
Cinque's conduct "slimy." (Trial Tr. at 776).
Before the first witness was called, Burstein raised an issue
as to whether Jane Klein, Cinque's companion, should be excluded
from the courtroom as a potential witness. I ruled that Klein was
to be excluded if there was some reasonable possibility that she
would be called as a witness by the Firm. Rather than have Klein
excluded from the courtroom, Cinque agreed not to call her as a
witness, so that she would be permitted to remain in the
courtroom during the trial. (Trial Tr. at 34-35). In summation,
Burstein sought to argue that the jury should draw a negative
inference from the fact that Cinque "never called [her] to
testify." (Id. at 784). I stopped Burstein from making the
argument, for it was his request to have Klein excluded from the
courtroom that caused Cinque to agree not to call her as a
witness. The trial transcript shows the following:
MR. BURSTEIN [to the jury]: . . . How come he never
called Ms. Klein to testify? She was here the whole
THE COURT: You know, that's an inappropriate
MR. BURSTEIN: I'will move on.
THE COURT: You know very well that Mr. Cinque said he
was going to call Ms. Klein and you objected to
having her sit in the courtroom.
MR. BURSTEIN: That's not what happened, Judge.
THE COURT: That's what happened, Mr. Burstein. It is
an inappropriate argument. Move on. Move on.
(Trial Tr. at 784).
When Cinque testified, Burstein cross-examined him by, among
other things, suggesting to the jury "that no less than three
judges in this very courthouse [had] criticized [Cinque] for
unprofessional conduct and actually sanctioned [him]." (Trial Tr.
at 534). One of those purported incidents was a decision issued
by Judge Lloyd F.
MacMahon in 1969 criticizing the law firm with which Cinque was
then associated for making a "frivolous" request for an
adjournment of a trial. Although Cinque is listed as one of the
two attorneys for the firm, he was a first-year associate at the
time, and he obviously played no role in the decision to ask for
an adjournment. Burstein's cross-examination of Cinque on this
basis was unfair. (Id. at 540-41, 607).
During the trial, outside the presence of the jury, I
questioned why the case was being tried to a jury, as I was of
the view that issues relating to fee agreements and the
interpretation thereof were more appropriately addressed to the
Court. Burstein responded by criticizing Cinque, saying, "He blew
it. I would have never done it on a jury trial." (Trial Tr. at
595). In fact, however, Burstein had filed, on behalf of Revson,
a written demand for a jury trial. (Cinque Decl., Ex. W).
Before the start of trial on Monday, May 17, 1999, Burstein
advised the Court that he had just served a subpoena on the Firm
for certain L & N records, including, for example, deposition
digests. He explained that he had faxed a copy of the subpoena to
the Firm the day before, Sunday. Cinque explained that the
records were in his garage in his home in East Hampton. I said
that I did not expect him to return to East Hampton to retrieve
the records because he was trying the case and did not receive
the subpoena until that morning. (5/17/99 11:00 a.m. Tr. at
9-11). Despite these circumstances, during the trial Burstein
sought to cross-examine Cinque on whether he had the digests.
(Trial Tr. at 643). In fact, as Burstein well knew, the digests
were in Cinque's East Hampton garage and I had held that because
the subpoena was not served until the first day of trial Cinque
was not required to return to East Hampton to retrieve them.
(Trial Tr. at 644-45).
2. Revson's Testimony
Revson testified and told the jury of her purported unhappiness
with Cinque as her lawyer, that she had found him "very difficult
to speak to," and that he was unprepared. (Trial Tr. at 63-64).
She tried to explain that she gave the Mercedes to him,
notwithstanding her unhappiness, because she was trying "to be
very nice" and "to get his attention." (Id. at 62-63). She
explained that she had written the note to Cinque, in which she
praised him, to "pad his ego," because "you get better results
with honey than with vinegar." (Id. at 71).
With respect to billing, when asked whether the Firm had ever
reduced its fees for not having achieved a "good result," she
responded, "Absolutely not." (Id. at 49). She also testified
that she "always paid" the Firm "by the hour." (Id. at 59; see
also id. at 61). With respect to the Florida visit from Cinque
and Klein, she testified that Cinque could not have worked twelve
or thirteen hours on her case that week, although she
acknowledged that she and Cinque worked one afternoon together on
the case. (Id. at 68).
With respect to the second Riviera agreement, Revson testified
that the morning after the closing, Cinque telephoned her and
brought up the subject of his "bonus." (Id. at 94). She
testified that in a conversation the following week:
what he said was, he called me a greedy bitch. He
said, You greedy bitch, you got all this money. I got
all this money for you and you're not going to give
me a bonus. No other lawyer in the world could have
done this for you, blah, blah, blah. I said, I'm
greedy? I said, No. You're fired.
(Id. at 107-08).*fn6
3. Burstein's Apologies
Burstein purported to apologize for his conduct at least four
times, in writing,
prior to trial. (Cinque Decl., Exs. F (letter to Court), G, Q, T
(letters to Cinque)). During trial, he purported to apologize
On the third day of the trial, after I made an evidentiary
ruling, McPherson, Burstein's partner, made a face. I admonished
her to stop making faces. (Trial Tr. at 600). McPherson responded
I apologize, your Honor, I didn't realize I was doing
it. I am somewhat surprised at your ruling, and
that's the only reason I'm reacting.
(Id. at 601). I commented that McPherson was "compounding the
disrespectfulness" by stating that she had made a face because
she was "surprised" at my ruling. (Id.). Burstein responded,
"You're a hundred percent correct, your Honor. I apologize."
(Id.). McPherson also apologized.
That evening, I received a fax from Burstein. He raised a
number of issues on the merits, but also stated the following:
I want to express, on behalf of both Ms. McPherson
and myself, our profound apology for any conduct on
our part which Your Honor has found to be
objectionable. Just as I certainly did not intend to
be guilty of "games playing," I can assure Your Honor
that Ms. McPherson did not intend to be disrespectful
in the least. But that is not the point. Our
obligation is to act in a manner that Your Honor
deems appropriate, and I promise that we will do our
level best to meet that obligation. I just want to
assure Your Honor that there was absolutely no
intentional disrespect of the Court, and I apologize
if our conduct led Your Honor to conclude otherwise.
(5/19/99 Burstein Letter to the Court).
The next morning, Thursday, May 20, 1999, before the start of
trial, I expressed the view that Burstein's apology, as set forth
in his May 19, 1999 letter, was not "a sincere one." (Trial Tr.
at 604). I commented that the May 19th letter was similar to
Burstein's letter apologizing for the proctology letter in that
both letters suggested that Burstein was not genuinely sorry for
his behavior, but that instead he was merely sorry for having
offended me. I expressed the view that Burstein was implicitly
suggesting that I was being unduly sensitive. (Id.). I went on
to state that the proctology letter and Burstein's tactics were
inappropriate and that they had given Cinque little choice but to
litigate this case. (Id. at 604-07).
The trial concluded that day and the jury began, but did not
complete, its deliberations. The case was adjourned until the
The next day, I received another fax from Burstein. This letter
I have given considerable thought to Your Honor's
comments of yesterday morning, and I wanted to
respond. . . . [A]s I continued to think about the
matter last night and today, I had to face up to the
fact that I was wrong and that Your Honor was right.
I agree with and apologize for the inadequacy of
the apology contained in my letter of May 19. Having
reread the letter, which was written late in the
evening and under considerable stress, I can see that
Your Honor's criticism was entirely appropriate. The
letter is fairly read as conveying an apology for
upsetting Your Honor instead of as an apology for
inappropriate behavior. . . .
Your Honor was of course completely correct that
there can be no justification for a lawyer making
faces in response to a Court's ruling, and that Ms.
McPherson's explanation substantially and wrongly
exacerbated the improper conduct. . . .
I also want to discuss the "proctology" letter. . .
. Upon reflection, the bulk of Your Honor's criticism
of me yesterday on that score was also correct. While
I believe that this litigation would have ensued
regardless of what I had written, that does not
change the facts that I could not have been more
sending that letter to Mr. Cinque, and that my
subsequent letter to Your Honor should have
acknowledged that error. Instead, as I unfortunately
did in connection with my May 19 letter, I wrongly
apologized only for offending Your Honor — thereby
improperly and unfairly suggesting that Your Honor
was just being hypersensitive. The fact is that the
"proctology" letter was improper, offensive, and
should not have been sent as written. I made a
significant error in judgment, which I then
compounded by not owning up to it. Aggressive
litigation tactics are one thing, but I recognize
that I went over the line. It will never happen
It is important to me that Your Honor appreciate
the depth and sincerity of this apology, and that, if
possible, Your Honor accept it. I say this because of
the great respect and admiration I have for Your
Honor. Your Honor's distaste for this case in general
has been oft-stated. Similarly, and although I
vigorously disagree, Your Honor has also made clear
your view that Mr. Cinque has the better side of this
dispute. At the same time, though, Your Honor has, as
a judge should, risen above those views and given Ms.
Revson an extraordinarily fair jury trial. While I
believe that some of the Court's legal rulings were
erroneous and prejudicial to Ms. Revson, I also
believe that this case has been a model of what a
jury trial should be. In particular, I greatly
appreciate and respect the fact that the Court's
anger at me and its own views of the evidence have
never been exhibited to the jury in the slightest
fashion. . . .
In sum, I hope this letter adequately expresses
both my remorse about my conduct and the conduct of
my firm, as well as my tremendous respect for Your
Honor. It is my hope that, from this point on, I can
reverse Your Honor's opinion of me.
(Burstein 7/15/99 Decl., Ex. HH) (emphasis added).
4. The Verdict
On May 24, 1999, the jury returned its verdict. It found that
Revson discharged the Firm "without cause," that the Firm did not
breach its fiduciary duties to her, and that the Firm was
entitled to recover $670,000 in fees from Revson. The jury
concluded that the Firm performed extraordinary work for Revson,
for it determined that the fair and reasonable value of the
services provided by the Firm was more than four times what the
fees would have been at the Firm's usual hourly rates. The jury
rejected Revson's claim that Cinque had abandoned her or sought
to extort her into giving him a bonus.
G. The Harm to Cinque and the Firm
Burstein's actions harmed the Firm and Cinque. Cinque explained
in his summation that "[e]very effort has been made to malign,
slander and libel me" and that "Cinque & Cinque for the past year
and a half . . . ha[s] been subjected to some of the worst claims
of fraud you can imagine." (Tr. 754-55). In describing the damage
done to his and the Firm's reputation, Cinque explained:
For a year and a half Jim and I have been living with
these claims of fraud. . . . As lawyers, we don't
have a lot more — we don't have an inventory. We have
our integrity. . . . [A]nd when someone challenges us
as frauds, you don't even have to be a professional
to realize that hurts. And they assaulted me in every
way they could. They assaulted my brother, the firm,
Cinque & Cinque. Denigrated us. Hurt us. And they
succeeded. They succeeded, I am frank to tell you.
(Trial Tr. at 769-70).
At one of the sanctions hearings, Cinque explained:
Then my life became a living hell, because once
[Burstein] seized upon the concept that he was now
going to accuse me of fraud as a lawyer, which is a
very serious allegation, what did he do? He
built upon the fraud claim consistently, claiming I'm
a fraud with Ms. Revson, then I must be a fraud with
all my clients.
(8/25/99 Tr. at 48). He added:
The letters [Burstein] was writing, could you
understand possibly how I might have been so beside
myself at some point where I am threatened with
criminality, loss of my entire practice, 30 years
down the drain that maybe I could have gotten violent
with the man? Can anyone understand that? I'm not
saying it would have been appropriate, obviously. But
calling me a criminal? Taking my entire 30 years of
(Id. at 57).
The Firm spent some $271,456 worth of time (at hourly rates of
$325 for Cinque and $300 for James Cinque) litigating the merits
and another approximately $25,000 in time addressing the issue of
sanctions. In addition, the Firm incurred disbursements of
$3,279.42. (Cinque Fees Decl., Ex. A; James Cinque Fees Decl.,
H. The Order To Show Cause
On May 25, 1999, I issued a memorandum and order raising my
concerns as to the propriety of Burstein's and Revson's conduct
in this case and directing Burstein and Revson to show cause why
I should not sanction them pursuant to Rule 11, the Court's
inherent power, and/or 28 U.S.C. § 1927. Revson v. Cinque &
Cinque, P.C., 49 F. Supp.2d 686, 688 (S.D.N.Y. 1999).
In response, Burstein engaged counsel for himself and separate
sanctions counsel was obtained for Revson. Burstein, Revson, and
the Firm made extensive written submissions and I conducted
hearings on August 18 and 25, 1999. The parties did not testify
or call witnesses, although they were given the opportunity to do
so, but counsel as well as Burstein and Cinque addressed the
DISCUSSION and CONCLUSIONS OF LAW
Burstein and Revson raise a threshold issue: They contend that
I must recuse myself — unless I accept their version of the facts
— because I am not impartial and they are entitled to an
"impartial fact-finder." Quoting from the Second Circuit's
decision in Mackler Prods., Inc. v. Cohen, 146 F.3d 126 (2d
Cir. 1998), they argue that they are entitled to the "procedural
protections appropriate to a criminal case," including the
presumption of innocence, the requirement of proof of guilt
beyond a reasonable doubt, and a trial. Id. at 130.
In Mackler, the Second Circuit held that "the imposition of a
sufficiently substantial punitive sanction requires that the
person sanctioned receive the procedural protections appropriate
to a criminal case." Id. at 130. The Court distinguished
between "punitive" and "compensatory" sanctions, noting that a
compensatory sanction did not require the "full panoply of
criminal procedure safeguards" but only notice and an opportunity
to be heard. Id.
The Second Circuit identified certain factors that may be
considered in determining whether a sanction is punitive or
compensatory: whether the sanction is intended to be punitive or
compensatory; whether it is retrospective (i.e., for past
wrongful conduct); whether it seeks to coerce future compliance;
whether there is an opportunity to purge; whether the sanction is
payable to the Court or to the injured party; and the size of the
sanction. Id. at 129. The Court held that a sanction of $10,000
imposed on a party and his attorney was punitive because the
district court intended it to be punitive, labelled it as such,
imposed it for past conduct without giving an opportunity to the
sanctioned party and attorney to purge, and ordered the funds to
be paid to the court rather than the injured party. The Second
Circuit vacated the award of sanctions and remanded to the
district court to consider
reimposing sanctions against the attorney (the other sanctioned
party did not appeal) after giving him the benefit of criminal
Without much discussion as to the differences between punitive
and compensatory awards, the Court in Mackler also held that a
second sanctions award of $45,000 was compensatory, although it
vacated this sanctions award on the grounds of insufficient
notice and an insufficient factual basis. Id. at 130. The
$45,000 sanction was imposed for the same conduct for which the
$10,000 sanction was imposed, but the $45,000 sanction was
labelled by the district court a "compensatory assessment" and
was to be paid to the injured party for attorneys' fees and costs
incurred during the trial, appeal, and sanctions hearing.
Mackler Prods., Inc. v. Turtle Bay Apparel Corp., No. 92 Civ.
5745, 1997 WL 269505, at *16 (S.D.N.Y. May 21, 1997), vacated
and remanded sub nom. Mackler Prods., Inc. v. Cohen,
146 F.3d 126 (2d Cir. 1998).
I conclude that Mackler does not require that Burstein and
Revson be awarded the procedural protections of a criminal case,
and the request that I recuse myself unless I accept their
version of the facts is denied.
First, the sanctions that I impose are intended to be
compensatory. They are to be paid to the Firm to compensate the
Firm and Cinque for a portion of the time they spent litigating
Second, in the context of attorney misconduct, Mackler must
be narrowly construed. Attorneys are officers of the court, and
they have special duties to the court that non-attorney clients
do not have. Courts traditionally have had the power to supervise
attorneys; that power would be seriously undermined if attorneys
who engaged in misconduct in a court proceeding were entitled to
the criminal protections of a criminal case before the court
could impose sanctions. Mackler can only mean that criminal
protections are required only when the sanction is clearly
Third, I have no biases against or animosity toward Revson or
Burstein. Throughout this litigation my rulings were made on the
merits. I gave Burstein, in particular, every benefit of the
doubt. I did not sanction him when the "proctology" letter was
first brought to my attention; I merely admonished him
informally. I denied the requests for sanctions when I quashed
the first and second bank subpoenas, even though I was troubled
by Burstein's conduct. Again, I gave him the benefit of the
doubt. It was only because Burstein's conduct continued that I
decided to issue an order to show cause.
In retrospect, my order to show cause probably should have been
more neutrally worded, but I had concerns and I wanted to share
those concerns with Burstein and Revson so that they would have a
opportunity to address them. The fact that I had those concerns
and made them known, however, is no basis for my recusal. It
cannot be the case that every judge who has concerns about an
attorney's conduct is disqualified from considering the question
of sanctions. I have carefully considered Burstein's and Revson's
explanations and arguments and I have carefully reviewed their
voluminous submissions. I have done so with an open mind.
Significantly, Burstein has previously recognized my ability to
be fair. In his apology letter written to me while the jury was
deliberating, Burstein wrote of his "great respect and
admiration" for me. He wrote that I had "given Ms. Revson an
extraordinarily fair jury trial" and conducted "a model of what a
jury trial should be." He noted also that my feelings toward him
and my "own views of the evidence ha[d] never been exhibited to
the jury in the slightest fashion." (Burstein 7/15/99 Decl., Ex.
Finally, it is worth noting that the Local Civil Rule governing
the discipline of attorneys permits a judge either to address a
disciplinary matter that arises in one of his or her cases or to
refer the matter to the Committee on Grievances. Local Civil Rule
The remedies provided by this rule are in addition to
the remedies available to individual judges and
magistrate judges under applicable law with respect
to lawyers appearing before them. Individual judges
and magistrate judges may also refer any matter to
the chief judge for referral to the Committee on
Grievances to consider the imposition of discipline
or other relief pursuant to this rule.
S.D.N.Y. & E.D.N.Y. Local Civil R. 1.5(f).
It is important that I consider the issue of whether sanctions
should be imposed against Burstein and Revson. The proceedings
occurred before me, in a case that I was supervising, and I am
intimately familiar with the facts.
Under these circumstances, the request for my recusal is
I have decided not to impose sanctions against Revson, even
though it is crystal clear that she made false statements in this
case. She falsely stated, among other things, that she retained
the Firm in 1994, that she did not have a written retainer with
the Firm, and that the Firm had refused to provide her with
contemporaneous time records. Indeed, Burstein concedes that
these statements were inaccurate, but contends that Revson "had
an innocent failure of recollection," that she made an "innocent
error," or that the error was corrected. (Burstein 7/15/99 Decl.,
¶¶ 58, 60, 61). He acknowledges further that Revson gave "very
inaccurate testimony" at her deposition, but contends that these
were "innocent failures of recollection" that occurred because
Revson "had been flustered and unnerved" and "confused" at her
deposition. (Burstein 8/13/99 Decl. ¶ 2).
I am also convinced that Revson testified falsely at trial
about her final conversation with Cinque, during which she
alleges that he called her a "greedy bitch" and threatened to
abandon her if she refused to pay him a "bonus." The jury
rejected this testimony as well, as it found that the Firm had
been discharged without cause.
Revson's misstatements and false testimony are extremely
troubling. Nonetheless, I am not imposing sanctions on her.
First, Revson is a party and not an attorney. She is not an
officer of the court and thus different considerations come into
play; for better or worse a judge cannot impose sanctions every
time he or she believes that a party testifies untruthfully.
Indeed, it may be that under Mackler Revson could not be
sanctioned on the basis of what would be tantamount to a finding
of perjury without being afforded criminal procedural protections
first. In addition, Revson was entitled to bring an
action to recover her files and to defend against the Firm's
Second, judgment has already been entered against Revson in the
amount of $732,370, consisting of the verdict of $670,000 plus
prejudgment interest of $62,370.
Third, Burstein has represented to the Court that he made the
"litigation decisions" in the case and that he "was responsible
for the tactics and strategies adopted during the litigation."
(Burstein 7/8/99 Aff. ¶ 2).*fn8
For these reasons, I will not impose sanctions against Revson.
I will, however, tax her costs of $3,279.42, consisting of the
1. Applicable Legal Standards
In recent years, much concern has been expressed by the bench
and the bar over the rise of "Rambo" tactics in litigation and
the lack of civility in the practice of law. See, e.g., Marvin
E. Aspen, A Response to the Civility Naysayers, 28 Stetson
L.Rev. 253, 253 (1998) (civility is the "current hot topic of the
legal lecture circuit"); Bruce A. Green, The Ten Most Common
Ethical Violations, 24 No. 4 Litig. 48, 48 (1998) (noting that
"[l]eaders of the organized bar now see [incivility] as the most
worrisome ethical problem"); see also Jerome J. Shestack,
Defining Our Calling, 83 A.B.A.J. 8 (Sept. 1997) (urging
lawyers to "resist the rise of Rambo-type tactics in which
civility is mocked and ruckus is routine").
Civility refers to "more than surface politeness; it is an
approach that seeks to diminish rancor, to reconcile, to be open
to nonlitigious resolution." Shestack, supra, at 8. A lawyer
can be civil and courteous while still being tough and
aggressive. "Civility is not inconsistent with zealous advocacy."
Robert C. Josefsberg, The Topic Is Civility: You Got a Problem
With That?, 59 Or. St. B. Bull. 19, 19 (Jan. 1999). It is
inconsistent with "Rambo" lawyering, which is characterized by:
A mindset that litigation is war and that describes
trial practice in military terms.
A conviction that it is invariably in your interest
to make life miserable for your opponent.
A disdain for common courtesy and civility,
assuming that they illbefit the true warrior.
A wondrous facility for manipulating facts and
engaging in revisionist history.
A hair-trigger willingness to fire off unnecessary
motions and to use discovery for intimidation rather
An urge to put the trial lawyer on center stage
rather than the client or his [or her] cause.
Robert N. Sayler, Why Hardball Tactics Don't Work, 74 A.B.A.J.
78, 79 (Mar. 1988).
Justice Sandra Day O'Connor has observed that more than half of
all practitioners report "dissatisfaction with the profession"
and that for many the practice of law has become "pointless and
no fun." Sandra Day O'Connor, Professionalism, 76 Wn. U.L.Q.
5 (1998). She attributes this trend in part to the lack of
civility in the profession:
These statistics mean that lawyers far too often
breach their professional obligations to other
lawyers — that many lawyers are caught up in a system
of behavior that is "structurally, morally, and
emotionally exhausted." When the lawyers themselves
generate conflict, rather than focusing on the
dispute between the parties they represent, it
distorts our adversarial system. More civility and
greater professionalism can
only enhance the pleasure lawyers find in practice,
increase the effectiveness of our system of justice,
and improve the public's perception of lawyers.
Id. at 8 (footnotes omitted).
A number of "civility" codes have been adopted. While these
codes are aspirational in nature, they provide guidance for the
issues at hand. See Prof'l Ethics Comm. of the Fed. Bar Ass'n,
Standards for Civility in Professional Conduct ¶ 1 (1998) ("In
carrying out our professional responsibilities, we will treat all
participants in the legal process, including counsel and their
staff, . . . in a civil, professional, and courteous manner, at
all times and in all communications, whether oral or written.");
id. ¶ 3 ("We will not . . . engage in offensive conduct
directed toward other participants in the legal process, nor will
we abuse other such participants in the legal process."); ABA
Lit. Section, Guidelines for Litigation Conduct ¶ 1 (Aug. 1998)
("We will treat all other counsel, parties, and witnesses in a
civil and courteous manner, not only in court, but also in all
other written and oral communications."); id. ¶ 2 ("We will not
. . . abuse or indulge in offensive conduct directed to other
counsel, parties, or witnesses."); Standards of Civility, 22
N YC.R.R. § 1200, App. A ("Lawyers can disagree without being
disagreeable. Whether orally or in writing, lawyers should avoid
vulgar language, disparaging personal remarks or acrimony toward
other counsel, parties or witnesses.").
The Code of Professional Responsibility is not purely
aspirational in nature, and it prohibits a lawyer from acting in
an uncivil, demeaning, or harassing manner. Canon 7 provides that
"a lawyer should represent a client zealously within the bounds
of the law." N.Y.Code of Prof'l Responsibility Canon 7 (1998)
(hereinafter, "N.Y.Code"). DR 7-101(A)(1) explains, however, that
a lawyer does not violate his duty to represent a client
zealously "by avoiding offensive tactics, or by treating with
courtesy and consideration all persons involved in the legal
process." N.Y.Code DR 7-101(A)(1). Likewise, DR 7-102(A)(1)
prohibits an attorney from taking action "merely to harass or
maliciously injure another." Id. at DR 7-102(A)(1). DR 1-102
provides that a lawyer shall not "[e]ngage in conduct that is
prejudicial to the administration of justice." Id. at DR
1-102(A)(5). EC 1-7 provides that "[a] lawyer should avoid bias
and condescension toward, and treat with dignity and respect, all
parties, witnesses, lawyers, court employees, and other persons
involved in the legal process." Id. at EC 1-7. EC 7-37 explains
that "[h]aranguing and offensive tactics by lawyers interfere
with the orderly administration of justice and have no proper
place in our legal system." Id. at EC 7-37. Finally, DR 7-105
provides that "[a] lawyer shall not present, participate in
presenting, or threaten to present criminal charges solely to
obtain an advantage in a civil matter." Id. at DR 7-105.
The bar should take note, as this case well shows, that Rambo
tactics do not work. Judges and juries do not like them. The
tactics employed by Burstein here did not prevent the jury from
returning a substantial verdict against Revson and they
undoubtedly contributed to the result. There is a lesson to be
learned. As one commentator has observed, "It defies all common
experience to believe that meanspiritedness is persuasive. . . .
Hardball is bad advocacy." Sayler, supra, 74 A.B.A.J. at 80;
see also John G. Koeltl, From the Bench, 23 No. 3 Litig. 3, 3
(1997) ("Incivility is counterproductive. Lawyers should be civil
in litigation not only because it is the right way to practice
law — which it is — but also because lawyers hurt their clients
and themselves by being mean-spirited, nasty, rude, and generally
uncooperative with their adversaries and the court."); Edward M.
Waller, Judicial Activists Wanted, 84 A.B.A.J. 116, 116 (June
1998) ("Experienced counsel know that the lawyer who maintains a
professional style is the more effective advocate.").
Incivility and Rambo tactics do not make sense, no matter what
the outcome of the case. As Justice O'Connor has noted:
[I]ncivility disserves the client because it wastes
time and energy — time that is billed to the client
at hundreds of dollars an hour, and energy that is
better spent working on the case than working over
the opponent. According to an English proverb, "[t]he
robes of lawyers are lined with the obstinacy of
clients." In our experience, the obstinacy of one
lawyer lines the pockets of another; and the
escalating fees are matched by escalating tensions. I
suspect that, if opposing lawyers were to calculate
for their clients how much they could save by
foregoing what has been called `Rambo-style'
litigation (in money and frustration), many clients,
although not all, would pass in the pyrotechnics and
happily pocket the difference.
O'Connor, supra, 76 Wn. U.L.Q. at 9 (footnotes omitted); see
also Judith S. Kaye, Lawyering for a New Age, 67 Fordham
L.Rev. 1, 8 (1998) ("[C]lients are now realizing that arms
manufacturers and lawyers are probably the only ones who gain by
policies of mutually assured destruction. It is very expensive to
scorch the earth.").
Civility is also important from a broader perspective:
As lawyers and judges, we live out who we are by
our actions. Professionalism is not something to don
at the office or take off with our suits and our
robes; our behavior continuously demonstrates who we
are. We can improve our own lives and spirits, those
of our clients, opposing counsel and parties and the
community as a whole, if we simply remember that our
part in the system gives us tremendous power, to make
life better for every citizen. . . . If every lawyer
and judge . . . would analyze every action she or he
takes in light of the goal of ensuring that the
system works fairly and efficiently for everyone,
questions about professionalism would simply
disappear — and tremendous good would result for our
Wallace P. Carson, Jr. & Barrie J. Herbold, Why "Kill All the
Lawyers"?, 59 Or. St. B. Bull. 9, 12 (Jan. 1999).
For all these reasons, the commentators have repeatedly urged
the courts to address the problem of incivility. See, e.g.,
Bartlett H. McGuire, Reflections of a Recovering Litigator:
Adversarial Excess in Civil Proceedings, 164 F.R.D. 283, 297-303
(1996) (suggesting how the judiciary can curb litigators'
excesses); Jerome J. Shestack, Advancing Professionalism Needs
Judicial Help, 84 A.B.A.J. 8 (Apr. 1998) (discussing a judge's
responsibility and authority to advance professionalism by
refusing to tolerate Rambo tactics and incivility); Gerald W.
Heller, Sanctioning Attorney Misconduct: Playing by the Rules,
45 Fed. Law. 38, 38 (Jan. 1998) (urging the use of Rule 11 and
other sanctions to eliminate "Rambo-style tactics"); Cornelius
Wallis Honchar, "Rambo" Litigators Can Be Disarmed With
Sanctions, Chi. Daily L. Bull., Nov. 4, 1994, at 5 (noting that
"case law is developing to combat uncivil, unprofessional
conduct"); Gideon Kanner, Welcome Home Rambo: High-Minded Ethics
and Low-Down Tactics in the Courts, 25 Loy. L.A. L.Rev. 81, 82
(1991) (arguing that judges should take a more active role in
policing misconduct and that judicial tolerance "is a substantial
factor which lies at the root of the Rambo litigation
b. The Sanctions Machinery
My order to show cause specified three possible bases for
imposing sanctions: Rule 11, section 1927, and the Court's
inherent power. I have determined that an award of sanctions
under Rule 11 would not be appropriate. My concern is not with
the filing of any particular "pleading, written motion, or other
paper," but with the pattern of conduct engaged in by Burstein.
will proceed only under section 1927 and the Court's inherent
Section 1927 provides:
Any attorney . . . who so multiplies the proceedings
in any case unreasonably and vexatiously may be
required by the court to satisfy personally the
excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct.
28 U.S.C. § 1927 (1994). Section 1927 requires a showing of
"subjective bad faith by counsel." Ted Lapidus, S.A. v. Vann,
112 F.3d 91, 96 (2d Cir. 1997); accord Keller v. Mobil Corp.,
55 F.3d 94, 99 (2d Cir. 1995). Sanctions may be imposed under
section 1927 against an attorney when the attorney's actions are
"`so completely without merit as to require the conclusion that
they must have been undertaken for some improper purpose such as
delay.'" Keller, 55 F.3d at 99 (quoting Oliveri v. Thompson,
803 F.2d 1265, 1273 (2d Cir. 1986)); accord MacDraw, Inc. v. CIT
Group Equip. Fin., Inc., 73 F.3d 1253, 1261 (2d Cir. 1996).
The standards for imposing sanctions pursuant to the Court's
inherent power are similar to the standards applicable to section
1927, with one major difference. Section 1927 applies only to
attorneys, while a court may assess attorneys' fees against both
attorneys and parties pursuant to its inherent power, for
"`act[ing] in bad faith, vexatiously, wantonly, or for oppressive
reasons,'" Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111
S.Ct. 2123, 115 L.Ed.2d 27 (1991) (quoting Alyeska Pipeline
Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59, 95 S.Ct.
1612, 44 L.Ed.2d 141 (1975) (citations omitted)), and for
"misconduct during the course of litigation." Milltex Indus.
Corp. v. Jacquard Lace Co., 55 F.3d 34, 37-38 (2d Cir. 1995).
The Second Circuit has repeatedly held that sanctions may not
be awarded under section 1927 or a court's inherent powers unless
the challenged actions are "motivated by `improper purposes,'
such as harassment or delay," and taken "entirely without color."
Id. at 38 (citation omitted); see Schlaifer Nance & Co. v.
Estate of Warhol, 194 F.3d 323 (2d Cir. 1999). A claim is
"colorable . . . when it has some legal and factual support,
considered in light of the reasonable beliefs of the individual
making the claim." Nemeroff v. Abelson, 620 F.2d 339, 348 (2d
Cir. 1980). As the Second Circuit explained further in Schlaifer
A claim is colorable when it reasonably might be
successful, while a claim lacks a colorable basis
when it is utterly devoid of a legal or factual
194 F.3d at 336 (vacating sanctions award because facts were
sufficient to allow attorneys "reasonably to believe that they
could have established their fraud claim").
Here, I believe Revson's claim of fraudulent overbilling was
specious at best. Revson and Cinque worked closely together and
she had a good sense of the time that he was devoting to her
matters. The Firm provided her with detailed bills, time sheets,
and other billing information, both orally and in writing. She
was assisted by accountants and financial assistants, who
reviewed the Firm's bills and records as well.
In the end, Revson's claim that she had been defrauded by
Cinque came down to her allegation that Robert Cinque had
overbilled her for his time charges during his trip to Florida,
as Burstein argued in summation that Cinque had "lied" about his
time charges in Florida, thereby committing "fraud" and
"cheating" her. (Tr. 790). There was no legitimate basis for
these accusations, however, as Cinque only billed for some twelve
or thirteen hours of time for the several days in question, which
included one full day of work, some work on parts of other days,
and a review of documents on the flights back and forth
between New York and Florida. (Tr. at 628; cf. id. at 68). The
overbilling claim makes no sense — it is highly improbable that
Cinque would have tried to overbill her for a period of time when
they were vacationing and working together in her Florida home.
Nonetheless, I cannot conclude that the fraud claim was
"utterly devoid of a legal or factual basis," from Burstein's
point of view, nor can I conclude that it was unreasonable for
him to believe, at least at the outset of the case, that he
"could" establish fraud. Burstein had a factual basis for
alleging that Cinque had breached his obligations to Revson by
threatening to "abandon" her: Revson told him so. Although the
jury rejected this testimony, Burstein was entitled to accept
Revson's version of the facts. In addition, Revson had the right
to bring suit to recover her files without making any effort to
settle and she surely had the right to defend against the Firm's
counterclaims. Burstein had the right, indeed, the duty, to
vigorously represent her in these respects. Hence, I conclude
that Revson asserted at least some claims and defenses in this
case that were "colorable."
The issue remains, however, whether sanctions may be imposed
against Burstein even in the absence of a finding that Revson's
claims and defenses were "entirely without color." In the context
of Rule 11, the Second Circuit has addressed the issue of whether
sanctions may be imposed for the filing of a "nonfrivolous," or
colorable, complaint where the complaint was filed for an
improper purpose. In Sussman v. Bank of Israel, 56 F.3d 450 (2d
Cir. 1995), the Court held, in the context of a case where the
complaint was not only colorable but plaintiffs had obtained some
relief in the district court:
A party should not be penalized for or deterred from
seeking and obtaining warranted judicial relief
merely because one of his multiple purposes in
seeking that relief may have been improper.
Id. at 459.
The instant case presents a different situation. My concern is
not with whether Burstein asserted frivolous claims against the
Firm. Rather, my concern is with the manner in which Burstein
litigated the case and whether his conduct multiplied these
proceedings and caused unnecessary injury to Cinque and the Firm.
Hence, the analysis is necessarily different.
Courts have imposed sanctions for misconduct by a lawyer
without a finding that the lawyer asserted a frivolous claim or
defense.*fn9 Indeed, the existence of a colorable claim does not
give a lawyer a license
to freely engage in abusive or improper conduct, and I hold that
a lawyer may be sanctioned for abusive or improper conduct,
even when he or she is pressing a colorable claim or defense on
behalf of a client.
b. Bad Faith
I turn to the question of whether Burstein acted in bad faith
and engaged in conduct for improper purposes. I conclude that he
did so, for four reasons: (1) he engaged in offensive, demeaning,
and abusive conduct, (2) he engaged in conduct that was
extortionate in nature, (3) he multiplied these proceedings, and
(4) he acted with complete and utter disregard for the harm that
his actions would cause Cinque and the Firm. I address each
reason in turn, and I will also briefly address some additional
arguments raised by Burstein.
(1) Burstein's Abusive Conduct
Burstein engaged in offensive, demeaning, abusive, haranguing,
and discourteous conduct.
The proctology letter speaks for itself, and even Burstein
acknowledged that the letter was "improper, offensive, and should
not have been sent as written" and he acknowledged further that
he "went over the line" by writing it. (Burstein 7/15/99 Decl.,
But there was more. Burstein repeatedly engaged in
name-calling: he called Cinque "a lawyer who . . . shames all of
us in the profession," "a disgrace to the legal profession," and
"slimy." He accused Cinque of being "professionally
irresponsible" and so "desperate for money he resorted to . . .
extortion." He charged Cinque with "engag[ing] in the type of
mail fraud that has led to the criminal conviction of other
attorneys." He pointed to Cinque's alleged conduct as an example
of "why lawyers are sometimes referred to as snakes." By
personalizing the dispute and engaging in these repeated
offensive, ad hominem attacks, Burstein "[e]ngaged in conduct
that is prejudicial to the administration of justice." Model Code
DR 1-102; see also In re Dinhofer, 257 A.D.2d 326, 690 N.Y.S.2d 245
(1st Dep't 1999) (suspending attorney for saying to a judge,
"[y]ou are corrupt and you stink"); In re Kavanagh, 189 A.D.2d 521,
597 N.Y.S.2d 24 (1st Dep't 1993) (disciplining attorney for
violating DR 7-106(C)(6) by making insulting and degrading
remarks to and about opposing counsel, including suggesting he
was linked to organized crime).
Burstein also engaged in tactics at trial that were simply
unfair and obnoxious, including cross-examining Cinque on the
basis of criticism directed by Judge MacMahon at Cinque's firm
when Cinque was fresh out of law school and could not have had
anything to do with the issue in question, and also by forcing
Cinque to choose between having his companion excluded from the
courtroom as a potential witness or waiving his right to call
her, and then, after Cinque chose the latter, asking the jury to
draw an inference against Cinque because he did not call her as a
(2) Burstein's Extortionate Conduct
Burstein engaged in conduct that was extortionate in nature.
Although it is certainly not improper to threaten to file a civil
suit, he did much more than that. He threatened to "tarnish"
Cinque's "reputation." He followed up on that threat by accusing
Cinque of fraud and fraudulent overbilling, a claim that he was
never able to support with any concrete evidence and that was
based primarily on his misreading of the Firm's time sheets. He
an "independent investigation" to ascertain the identity of the
Firm's other clients, actually contacted representatives of the
Firm's former clients, and sought permission to send a letter to
all the Firm's clients advising them of the lawsuit. He tried to
subpoena all the Firm's banking records. He wrote a letter to
Cinque threatening to send a letter to the Court accusing him of
criminal conduct if he did not capitulate to Revson's demands.
See Model Code DR 7-105 ("A lawyer shall not present,
participate in presenting, or threaten to present criminal
charges solely to obtain an advantage in a civil matter."). He
threatened to turn a fee dispute into a RICO case. He actually
tried to make good on his threat to "tarnish" Cinque's reputation
by contacting at least one reporter, who indeed wrote an article
about the case in which former clients of the Firm are quoted.
See Kramer v. Tribe, 156 F.R.D. 96 (D.N.J. 1994) (disciplining
attorney who sued another attorney for share of a fee, where
plaintiff attorney threatened to "ruin" reputation of defendant
attorney and sought to carry out that threat by distributing
complaint to media and other members of legal community).
Burstein relies heavily on Sussman v. Bank of Israel,
56 F.3d 450, 453, 459 (2d Cir. 1995), where the Second Circuit held that
a "prelitigation" letter threatening suit and a "full airing" of
"outrageous conduct" if the matter were not resolved did not show
an improper purpose. Sussman is distinguishable, however, for
the prelitigation letter there did not contain the kind of
offensive and inappropriate language used by Burstein in this
case. Burstein's choice of words, as well as his filing of suit
even after Cinque expressed a willingness to discuss settlement,
shows that the proctology letter was sent in bad faith. Moreover,
I am not sanctioning Burstein on the basis of the proctology
letter alone. Rather, the letter was but one in a series of
As Judge Miner has observed in discussing civility, "the
purpose of our enterprise is justice under the law and . . .
anything that moves us away from that purpose . . . is to be
condemned." Roger J. Miner, Professional Responsibility in
Appellate Practice: A View From the Bench, 19 Pace L.Rev. 323,
331 (1999). Conduct that is intended not to reach the truth but
to coerce a settlement through improper threats and harassment
does not further our purpose of seeking justice.
(3) Burstein Multiplied These Proceedings
Burstein's actions multiplied these proceedings. He placed
Cinque in a position where Cinque had no choice but to litigate,
for the only way that Cinque could obtain vindication with
respect to the allegations of fraud was to try the case and
obtain a finding that he had not engaged in fraud.*fn11 Although
Burstein contends now that Revson was interested in settling the
case, his first offer to discuss settlement was a sham and
betrays his bad faith. When Cinque met Burstein's unreasonable
deadline by expressing an interest in discussing settlement,
Burstein ignored him and responded by filing suit. His June 22,
1998 letter to Cinque also purported to express a desire to
settle, but in the process the letter set an unreasonable
deadline for Cinque to respond, demanded that the Firm agree to
all the relief that Revson could obtain if she had prevailed in
every respect at trial, and called Cinque "a lawyer who . . .
shames all of us in the profession." (Cinque Decl., Ex. Q).
These were not good faith efforts to settle. Instead,
Burstein's actions escalated what should have been a simple fee
dispute into a bitter, costly, time-consuming, and unseemly
litigation. His proctology letter obviously placed a great burden
on everyone, was the subject of a motion in limine, and was
discussed at length throughout the trial. His subpoenas to the
bank and efforts to contact the Firm's former clients generated
disputes that repeatedly required the intervention of the Court.
Finally, his actions certainly led to the expenditure of a great
deal of effort on the issue of sanctions.
(4) Burstein's Disregard for the Harm to Cinque and the
Finally, Burstein acted with complete and utter disregard for
the harm that his actions would cause Cinque and the Firm. After
warning Cinque that his reputation would be "tarnish[ed]" and
purportedly inviting settlement discussions to give Cinque the
opportunity to prevent that from happening, Burstein ignored
Cinque's acceptance of that invitation and instead simply filed
suit. He asserted a claim of fraudulent overbilling essentially
on speculation, and then fished for evidence to support that
claim by seeking to identify and contact other clients of the
Firm and subpoenaing bank records.
It is apparent that Burstein gave no consideration to the
impact that the public accusations of fraud or the efforts to
identify and contact the Firm's other clients or the personal
slurs and attacks would have on Cinque or that, even worse, he
intentionally conducted himself in a manner calculated to create
(5) Burstein's Additional Arguments
Burstein makes four additional arguments that I will briefly
First, he contends that he acted in the manner that he did
because of his perception, prior to filing suit, that Cinque was
"extraordinarily rude and unreasonable." (Burstein 7/15/99 Decl.
¶ 29). The contention is rejected, for I do not believe that
Burstein engaged in his tactics in this case merely because of
Cinque's purported reputation. He had never met or spoken to
Cinque prior to this lawsuit. In addition, Cinque always
conducted himself in a respectful and civil manner in this case
and he never responded to Burstein in kind. Indeed, Cinque
handled these extraordinarily difficult circumstances with great
dignity. Finally, even assuming that Burstein did believe that
Cinque could be rude and unreasonable, "two wrongs don't make a
right," and that belief did not give Burstein justification to
engage in offensive, demeaning behavior himself.
Second, Burstein argues that he ought not to be sanctioned
because the Court failed to give him "contemporaneous guidance"
that his actions were reaching a "critical mass." (Burstein
8/22/99 Decl. ¶ 3). Burstein is wrong. I did make my views known
along the way,*fn12 and I did not learn of other incidents until
much later. More importantly, I am sanctioning Burstein not for
one single incident, but for his entire course of conduct. To say
that the Court must view each individual incident along the way
with an eye toward whether it fits into a course of conduct that
in totality is sanctionable in the end speaks volumes about
Burstein's attitude toward the administration of justice. The
view is that litigation is not just a war with the opposing party
or counsel, but also a contest with the Court. It is an attitude
that asks: "how much can I get away with this time, and if the
Court lets me get away with it, can I throw it back at the Court
later?" I expect more from an officer of the Court, and I
certainly expect more
from Burstein, who is a very capable, experienced attorney.
Burstein's counsel argues in this vein that when I denied the
Firm's requests for sanctions upon quashing the bank subpoenas I
sent a "signal" that the conduct was not "sanctionable." (8/25/99
Tr. at 63-64). By this logic, if I were to decline to sanction
Burstein in this case, I would be sending a "signal" to the bar
that it is appropriate to write offensive, threatening letters to
a party, that it is permissible to call adversaries "snakes" and
"slimy," and that lawyers can engage in vexatious, unfair tactics
with impunity. I will not send that "signal."
Third, Burstein suggests that I am overly sensitive and that,
in essence, attorneys are held to a higher standard in terms of
civility in my courtroom than in others. (See Burstein 7/15/99
Decl., Ex. EE; 5/19/99 Burstein Letter to the Court). I do not
believe that to be the case. I cannot imagine that Burstein's
course of conduct in this case would be tolerated by any judge.
Standards of conduct do not shift from courtroom to courtroom; a
lawyer is an officer of the court who must act in a respectful
and responsible manner — not to please a particular judge but
because that is the right way to act.
Finally, Burstein argues that he was only meeting his
obligation to act zealously. But that is not so, and it is
apparent that Burstein does not fully understand his ethical
obligations. At the August 25, 1999 hearing, Burstein stated that
he was "commanded to act as a zealot." (8/25/99 Tr. at 30). He is
wrong. Although an attorney must represent his client zealously,
he cannot be a "zealot." Minnesota v. Richardson,
514 N.W.2d 573, 576 (Minn.Ct.App. 1994) ("An attorney at trial is an
advocate and, as an officer of the court, cannot be a zealot.");
George A. Riemer, Zealous Lawyers: Saints or Sinners, 59 Or.
St. B. Bull. 31 (Oct. 1998) ("As an officer of the court,
however, a trial lawyer cannot be a zealot.").
Judge Marvin E. Aspen, Chief Judge of the United States
District Court for the Northern District of Illinois, has
addressed the issue of a lawyer's duty to represent a client
zealously in this context:
Some trial lawyers . . . would argue that the duty
to represent a client zealously is paramount to the
administration of justice, even when it conflicts
with any obligations of professionalism. That, in
essence, forms the core of the debate over the
decline of civility in the profession. The Rambo
lawyers invariably wrap their tactics and abrasive
style in the cloak of zealous advocacy. To do less,
they maintain, is to fail to put the interests of
their client first. . . .
I can tell them that not only do they not
understand the law, but the fact that judges [and
jurors] who witness their tirades are merely human
makes those tactics doubly dangerous.
Marvin E. Aspen, Let Us Be "Officers of the Court," 83 A.B.A.J.
For all these reasons, Burstein's arguments are rejected and
sanctions will be imposed against him.
3. The Amount of Sanctions
The Firm expended approximately $270,000 worth of time
litigating the case on the merits and another approximately
$25,000 in time addressing the issue of sanctions. Because of
Burstein's conduct, the Firm is entitled to be compensated for a
portion of its time spent on this case. The Firm did not actually
pay attorneys' fees, but it could have spent the time on other
matters earning a fee.
Of course, the Firm is not entitled to be compensated for all
of its time. As I have held, Revson had some colorable claims and
she was certainly entitled to defend against the Firm's
counterclaims. The Firm is not entitled to compensation for its
time spent defending against colorable claims or prosecuting its
Nonetheless, I have no doubt that Burstein's tactics multiplied
in the sense that the Firm (and, for that matter, Revson) would
have spent substantially less time on the case if Burstein had
conducted himself in an appropriate manner. Indeed, Burstein's
tactics significantly reduced the possibility of a settlement, as
he left Cinque with little choice but to take the case to
verdict. It is worth noting that after Burstein replaced Cinque
as Revson's attorney, Burstein's firm received in excess of $1
million in fees in approximately the first year of representing
For all these reasons, I will impose sanctions against Burstein
in the amount of $50,000.
Sanctions are imposed on Burstein. He is ordered to pay $50,000
to the Firm. Sanctions are not imposed on Revson. She is,
however, ordered to pay costs of $3,279.42 to the Firm.
The Clerk of the Court shall enter a supplemental judgment