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UNPROFESSIONAL MANNERS

January 15, 2011


by David Arthur Walters
MIAMI MIRROR

PROFESSIONALISM AND RAMBOISM

The late Florida lawyer Henry John Martocci was clearly a Rambo lawyer who in his family law
practice took no prisoners. Leaving aside all the blather about professionalism, the dignity and
integrity of legal counselors, he was more than willing to win at all costs, to figuratively batter
his victims and leave them for dead beside the judicial road. Indeed, every dirty trick and
intimidation tactic was fair when he was waging the legal battle of the sexes. After all, he was a
litigator; good manners do not win cases.

Woe unto a poor defenseless woman once her estranged husband put her in Henry John
Martocci¶s sights. If she was not poor to begin with, she would be when he got done with the

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case, and she would also lose custody of her kids if her husband wanted them, regardless of the
record that he had abused them. She would have difficulty getting a local lawyer to handle her
case, for he made the practice of law miserable. Even legal aid attorneys did not want to confront
him; not only were they afraid of him, he had friends there, one of whom represented him in a
disciplinary case.

When an abused woman ripe for re-victimization by the legal system did obtain legal counsel,
representation would most likely be incompetent; a series of lawyers would grab $1,500
retainers, show up for a hearing or two, sell out and cut and run, as they did in the cases of Edna
Jane Favreau, stripping her of her hard-earned property and leaving her to defend herself pro se,
i.e. without legal counsel. She got several attorneys disciplined but she lost everything anyway;
years have passed but she hopes to get her case re-opened, and has repeatedly asked the
government to prosecute the judges for participation in fraud upon the court and for criminal
violation of the Disabilities Act. Yes, she said the judges went along with the bomber attorney,
chuckling here and there; a judge threatened to impose a small fine for one of the most flagrant
abuses, but nary a judge reported Henry John Martocci to The Florida Bar or slapped him down
in court.

Florence Patton was also on the wrong side of the notorious lawyer. She said she paid around
$300,000 in fees during her custody battle, including $50,000 appealing the judge¶s ruling to the
Fifth District Court of Appeals. She won her case and recovered the fees in the appellate case,
but the lower court refused to award her costs and fees there, and the judge refused to obey the
mandate of the appellate court, to have her estranged husband turn over custody and pay
arrearages. She said an attorney collected $5,000 for another appeal, and then threw the case. She
was told that the Florida Supreme Court, where the lower court judge¶s father sat, would not hear
an appeal, but she pursued an appeal there anyway, and she said it was rejected without
comment. To make a long story short, Florence Patton was financially ruined; she works as a
waitress now.

The movie character Rambo, as we know, was a sort of vigilante who cursed and used extra-
legal means including terroristic threatening and homicide to obtain justice. Natural law theory
claims that legitimate law must rooted in morality, in the reason and conscience true to human
nature; otherwise, laws do not have to be obeyed. And there is always the divine law that,
expressed as the Golden Rule, trumps ill-conceived human law. Even fickle Zeus reported
declared that a man without a sense of justice should be banished or put to death, for all normal
human beings regardless of status are equally created with a sense of justice; they expect fair
treatment and redress for wrongs done to them.

But it is not justice according to reasoning and conscience or God that Rambo lawyers are after;
they are after the result; paid by the stone, they will leave no stone unturned to get it. They are
legal positivists in the worst sense of the word, for they separate law from morality, and claim
that the former is not derived from the later, or, if something is legal it is moral. It is this sort of
positivism that legal philosophers say led to the rise of Nazism in Germany. We know the
Germans admired Machiavelli and Hobbes. Might makes right: There is no such thing as
righteousness in nature; the natural state of man is continuous warfare, the war of all against all,
and the only natural right, they say, is right for each individual to fight for his life, using all
means necessary to preserve it; the notion of ³unjust law´ is absurd, for the law is whatever rules

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the sovereign power may impose. It may follow that a zealous lawyer may do whatever he
believes is in the interest of his client no matter how unscrupulous or immoral if there is no
statute or bar rule against it, and may go so far as to say: If it is not illegal, it¶s moral, so don¶t
talk to me about professionalism.

Professionalism became quite the issue in 1905, when President Theodore Roosevelt denounced
the ³ethics of the marketplace´ in law practice and urged the bar to take ³affirmative steps´ to
rein in ³unprofessional elements.´ The American Bar Association responded in 1908 with the
America¶s first set of national ethics standards, the Canons of Professional Ethics. There was
scarcely any debate over their adoption. Critics claimed that the Canons were designed by the
professional elite to restrain trade, and in a bigoted fashion; the wave of immigrants and others
who were graduating from night schools threatened the power of the bar elite and promised to
bring more competition to the trade. There seems to be little success resulting from the
codification of ethics standards in the profession. The number of lawyers actually chastened for
violations of those standards is tiny in proportion to the number of complaints made, and those
numbers are falling as the public realizes complaining is a relatively futile exercise as well as one
that can result in expensive retaliations such as defamation slap suits. Well, now, it is said that
lawyers are expected to discipline themselves, first of all; and then their peers are expected to
play a role in discipline; finally, a complaint may be brought to disciplinary counsels or
grievance committees.

The attitude that has prevailed since the American Revolution is that we should not expect
lawyers to be any better than their clients. Perhaps ten percent of them are rather vicious. Some
experts believe that around ten percent of the nation¶s lawyers are Rambo lawyers, so Henry
John Martocci had plenty of company in his class.

The so-called Socratic Method is taught in law class, and that dialectical method is said to render
graduates argumentative and mean-minded sophists who will say and do anything to win their
cases for a fee provided their conduct does not violate the positive law, which is generally
supportive of commercialism and ruthless competition. Their conduct may be immoral, but as
long as it is not illegal or unethical as defined in writing by published bar rules, no holds are
barred, and they may behave with impunity in a manner that was once deemed unprofessional.

Observe that Socrates, who was the wisest man in the world because he was aware of his own
ignorance, did not lose arguments, and that his interlocutors were sometimes his mouthpieces
and quite often his stooges, foils to show off the brilliance of his foregone conclusions. But
Socrates was not arrogant; he and his companions during dialectical discourse were civil,
sincere, conciliatory, interested in the truth, etc cetera. They were not Plato¶s sophists as he
defined them: egotistical and antisocial. They engaged in polite conversation on great subjects.
When law was a noble profession, a good lawyer was an honorable counselor; he was civil, i.e.
sincere, respectful, dignified, honest, and conciliatory. Still today lawyers are supposed to have
higher duty, that to the general public if not to the Lord on High, than just to win a particular
case; they are supposed to be good citizens, i.e. citizen lawyers. Above all they must be
trustworthy. It is believed that the success of the legal system and of democracy itself depends on
lawyers¶ professionalism in the best sense of the term.

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Noble or virtuous professionalism as opposed to vicious or commercial professionalism can be
feigned. Lately the most highly respected and trusted lawyers in Florida have been exposed as
fraudsters. They had highly developed social skills; for obvious reasons, the fraudsters did not
display impropriety and political incorrectness. But Rambo lawyers are zealous bottom feeders
who engage in outrageous and/or unconscionable behavior on behalf of clients. They could care
less about the noble tradition of the profession; after all, positivists exposed the evils of nobility
and overthrew the ancient regime. Alas, they did not see the beam in their own eye.

Now we hear that there is widespread dissatisfaction among judges and lawyers at the gradual
changing of the practice of law from an occupation characterized by congenial professional
relationships to one of abrasive, dog-eat-dog confrontation. The unprofessional conduct of some
lawyers can make the practice of law so unpleasant for other lawyers that more than half of
practicing lawyers may wish they had chosen another profession.

We can only hope that the most disgruntled lawyers do something to radically reform the
profession from within rather than take up another occupation. Then their higher duty to the
public would mean something. Given the so-called inherent power of the judiciary to discipline
lawyers and its independence as a branch, the chances of effecting radical reform from outside
the system are slim short of burning down the courthouses with the lawyers in them. The
organizations that discipline attorneys and judges have gotten rid of many bad apples, but the
public still has too many good reasons to have contempt for the court system and particularly its
integrated bars. As for the other branches of government, they are dominated by lawyers, as are
the large non-governmental organizations; so what other recourse do commoners have but
revolution? Maybe it is not too late: we may find lawyers to take on the power elite.

DISCRIMINATION AND BAD LANGUAGE

Not surprisingly, Henry John Martocci¶s name comes up in national and state bar association
literature discussing Ramboism. The following reference is to his conduct in Florence Patton¶s
case, which we will discuss at length elsewhere:

Attorney made faces at opposing counsel, stuck out his tongue at her, and told her that she was a
³stupid idiot´ and should ³go back to Puerto Rico.´ Florida Bar v. Martocci, 2001 Fla. LEXIS
843. (public reprimand and 2-year probation).

No, Henry John Martocci was not the only notorious Rambo attorney in this great nation of ours,
nor was he the only one who relished demeaning inexperienced female attorneys,

"I don't have to talk to you, little lady," "Tell that little mouse over there to pipe down," "Be
quiet, little girl," and "Go away, little girl." Principe v. Assay Partners, HRO Int'l Ltd., 154 N.Y.
Misc. 2d 702, 586 N.Y. S. 2d 182 (Sup. Ct., N.Y. County, 1992) (attorney sanctioned).

Plaintiff¶s counsel referred to female defense counsel as a ³c--t,´ and ³a--hole´ and advised her
that she should ³go home and have babies.´ Matter of Jordan Schiff, Docket No. HP 22/92
Departmental Disciplinary Committee, First Judicial Dept., Report and Recommendation of
Hearing Panel (NY Feb. 2, 1993); see also Matter of Schiff , 599 N.Y.S.2d 242 (1st Dept. 1993)
(censure Schiff finding that conduct reflected adversely on his fitness to practice law).

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The Oklahoma Supreme Court in Matter of Reinstatement of Katz, 907 P.2d 1029 (Okla. 1995)
condemned intimidation tactics. The Court was inhospitable toward Scott William Katz who was
uncivil and rude. The Court ruled that an attorney who had been disbarred from the Florida State
Bar was not welcome to practice law in Oklahoma because of egregious remarks in court
documents and in correspondence. The attorney's application for reinstatement in Oklahoma was
denied (1) for calling a Florida Judge in a court filing a "m----------- son-of-a-b----;" (2) for
calling the judge's daughter "a common whore and trollop,"; (3) in correspondence for telling a
fellow lawyer, "Zaretsky: you're an a------;"and (4) for describing a Florida Supreme Court
Justice in a lawsuit as "the bimbo, Rosemary Barkett." Justice Hardy Summers wrote, "In an era
when many veteran lawyers lament a perceived decline in professionalism, this court does not
encourage the practice of law by intimidation. Id. at 1032

³Just get your foul, odious body on the other side," and "Don't use your little sheeny, Hebrew
tricks on me." In re Williams, 414 N.W.2d 394 (MN. 1987) (suspension from the practice of
law).

A deputy district attorney who told defense counsel in a hallway conversation that ³I don¶t
believe either one of those chili-eating bastards,´ referring to the Spanish surnamed defendants.
People v. Sharpe, 781 P.2d 659, 660-661(Colo. 1989) (public censure).

Neither officials of the bar nor bench have been sitting on their hands. Disciplinary rules were
recommended at the national level to curb the abuses, and the supreme courts of states including
Florida have adopted them. For example, Florida Bar Rule 4-8-4(d) provides that lawyers may
not ³engage in conduct in connection with the practice of law that is prejudicial to the
administration of justice, including to knowingly, or through callous indifference, disparage,
humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on
any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national
origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or
physical characteristic«.´

The national and state bar association published criticism of Ramboism is primarily in defense of
attorneys and the reputation of the profession, and seldom do we hear how parties and witnesses
themselves are abused. Judicial process is supposed to get at the truth, to bring out the facts so
justice can be served, but Rambo lawyers misuse the process to suppress the truth and obstruct
justice. They use dirty tricks, such as putting falsehoods in unsworn memoranda, writing letters
that purportedly confirm settlements that have not been had, misquoting court opinions, misstate
an opponent¶s position, and withhold documents. But the criticism is largely focused on
egregious conduct in deposition rooms, where there is usually no judicial authority to oversee the
proceedings but the officers of the court who are involved in the misconduct. In depositions,
Rambo lawyers give instructions, and make suggestive objections, such as ³answer if you know´
or ³answer if you remember´ or the highly favored ³I don¶t understand the question,´ that coach
witnesses in order to obstruct justice. We shall relate elsewhere how Henry John Martocci
physically intimidated Edna Jane Favreau during a deposition, and tried to prevent her from
filming the deposition so people could see his disgraceful conduct.

Now the courtrooms, and the deposition rooms by association, are considered sacrosanct. But
misconduct in hallways, parking lots, and so on does not get as much attention and may not be

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very seriously considered; it may even be believed to be outside of the purview of the ethical
rules, despite Rule 3-4.3: ³Misconduct and Minor Misconduct. The standards of professional
conduct to be observed by members of the bar are not limited to the observance of rules and
avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as
constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to
specify any particular act of misconduct be construed as tolerance thereof. The commission by a
lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is
committed in the course of the attorney's relations as an attorney or otherwise, whether
committed within or outside the state of Florida, and whether or not the act is a felony or
misdemeanor, may constitute a cause for discipline.´

THE A-HOLE AND F--- YOU CASE

In the first part of this series, we promised to briefly discuss the first known Florida Bar
disciplinary case brought against Henry John Martocci, which involved a ³pissing match´
between him and another attorney. The Referee in the case noticed that the misconduct took
place outside of the deposition room, and that was a mitigating factor. No discipline was
imposed because John Henry Martocci¶s unprofessional conduct was matched by his opponent,
but the Supreme Court took the unusual step of publishing the details to shame the both of them
for putting the profession to shame.

We shall eventually see that the charges in the A-hole and F--- You Case were hardly the worst
ones brought against Henry John Martocci over the years, yet the case is an important one
because not only does it give us an idea his temperament, especially towards women in his
threatening of a court reporter, it is sometimes mistakenly cited in other parts of the country as
supportive of the positivist notion that draws a difference between morality and law, and, by
implication, between the high moral standards of the profession and ethical conduct ± the
specific rules of the bar regulating conduct no matter how vaguely conceived and arbitrarily
enforced they may be. Theoretically, lawyers must obey those rules; they should adhere to
professional standards but they do not have to. Here is the classically drawn difference between
is and ought, the real and the ideal of the basic human crisis, that of hypocrisy, without which
there would be no improvement to progress towards.

³Professionalism´ is a term we often see mouthed in these matters; it is an overarching term that
includes legal ethics or definite professional responsibilities, yet it also includes the suggestion
that lawyers ought to be civil. Critics dismiss the insertion in bar codes of adjurations to be civil,
and claim they are not binding like ethics rules. Traditional jurists, however, insist that law is
rooted in high moral standards, and that the ethics rules are merely the lowest common
denominator of acceptable lawyer conduct.

In Florida Bar v. Martocci, 699 So.2nd 1357, Florida Bar Case 1996-30098, we learn that after a
partial deposition being taken on the morning of April 24, 1995 was prematurely concluded,
Henry John Martocci, representing the former wife in a custody and support case, approached the
opposing attorney J. Scott Lanford from the rear. Mr. Lanford had reminded him that the
deposition would be continued that evening, and had instructed Mr. Martocci to ³be there, thank
you.´ Mr. Martocci put his hand on Mr. Lanford¶s shoulder and said , ³F--- you,´ and, after Mr.

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Lanford asked him to repeat what he had said, said it again, and then called Lanford an ³A²
hole´ twice.

The tape recorder of a court reporter by the name of Stephanie McGraw did not pick up the ³F---
you´ but did record the word ³A±hole´ uttered several times. Just before the deposition was
continued that evening, Mr. Martocci objected to the presence of McGraw as court reporter. He
was heard saying to his client, while pointing at McGraw, ³I¶m going to get that woman if it¶s
the last thing I do.´ During the deposition, he claimed that Ms. McGraw and Mr. Lanford had
completely fabricated the damning portion of the tape.

A witness testified he had seen Mr. Martocci push or point at Mr. Lanford¶s chest. Witnesses
testified they had heard Mr. Martocci call Mr. Lanford ³looney´ in the parking lot after the
deposition.

Mr. Martocci filed a complaint with the Bar against Mr. Lanford and claimed that Lanford had
engaged in fraudulent behavior during the proceedings and had called him a liar. Although the
tape recording caught Mr. Martocci saying ³A²hole´ several times, Mr. Martocci denied he had
used that word or had said ³F--- you,´ but he eventually admitted using the F-word, claiming that
his denial was based on the fact that he had not said it during the deposition but after it was
terminated.

He said that his uncouth reaction to Mr. Lanford¶s reminder of the deposition was due to his
stress and physical illness at the time, and the fact that the time of the deposition conflicted with
his need to attend to his girlfriend¶s mother, who had Alzheimer¶s disease. He showed that he
had himself been taken to a hospital after suffering a mild stroke, having a blood sugar level of
1100. Furthermore, he said Mr. Lanford had called him a liar before a circuit court judge. He
also pointed out that, during his 32 years of practicing law, 12 of them in New York and the last
20 in Florida, he had only one finding of guilt against him in a disciplinary action, and that over
a fee dispute, therefore no pattern of misconduct was evident.

However, the Referee did not point out that he may very well may have had dozens of
complaints lodged against him for which the records had been destroyed pursuant to the Supreme
Court¶s record retention policy because there were no findings of guilt for one reason or the
other. Not only are such records destroyed but so are the records that there were any records. A
large number of dismissed complaints could very well indicate a pattern of misconduct, not only
on the part of attorneys but on the part of The Florida Bar, the disciplinary arm of the Supreme
Court of Florida.

The Referee, on December 5, 1996, having considered Mr. Lanford¶s behavior and having taken
Mr. Martocci¶s physical and mental health in mind as well as the other mitigating factors, such as
the fact that the conduct occurred outside of the deposition room and that Mr. Lanford had
insulted Mr. Martocci in front of a judge, found that no Bar Rules had been violated, and
recommended no discipline. But the Florida Bar objected to Mr. Martocci¶s excuses, blaming
tactics, and unwillingness to take responsibility for his behavior; the Bar argued against the
Referee¶s findings but to little avail: the Supreme Court deplored the childish and demeaning
public conduct of both attorneys, the sort of unprofessional albeit not unethical conduct that

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occurs all too often in the profession, and said it shamed the Bar, therefore the Supreme Court
decided to publish its finding even though it approved of the Referee¶s recommendation.

³The court commends The Florida Bar for bringing this type of case as a necessary part of
regulating our profession. While the court cannot condone the actions of Mr. Martocci in this
case, while reviewing the totality of the circumstances including, but not limited to, the personal
circumstances of the Respondent at the time of the alleged actions, the health of the Respondent
including his physical and mental health, and, most importantly, the conduct of opposing counsel
in this case, the Referee finds that it has not been proven by clear and convincing evidence that
the conduct rises to the level of a violation of Rule 4-8.4 (c) and 4-8.4 (d)«. No discipline is
recommended against the respondent.´

Now the layman might think that calling an attorney an A-hole and insulting him with the F-
word actually violates the part of Rule 4-8.4(d) that provides that lawyers may not ³engage in
conduct in connection with the practice of law that is prejudicial to the administration of justice,
including to knowingly, or through callous indifference, disparage, humiliate, or discriminate
against litigants, jurors, witnesses, court personnel, or other lawyers on any basis«.´ That it did
not rise to that level is, as Luther liked to say of theological contradictions, is one of ³God¶s
Mysteries.´ The Supreme Court excused itself, washing its hands of the matter, observing case
law to the effect that a Referee¶s findings must be upheld as correct absent some clear evidence
of error or lack of evidence, otherwise the court ³is precluded from reweighing the evidence and
substituting its judgment for that of the referee.´ Although the Bar had presented evidence of the
Respondent¶s guilt, the Referee decided otherwise, based on mitigating factors that the Bar had
not disproven. The Referee¶s decision on the facts appeared to turn on whether the profanity
occurred during the deposition or out in the hallway after the deposition. Wherefore the Supreme
Court, recognizing that the Referee is best-equipped to make a judgment as to the character and
demeanor of a lawyer subjected to the disciplinary process, deferred to the Referee¶s judgment in
the case.

Now we can see that, contrary to subsequent citations of this case, the issue was not decided on
the difference between suggested professional conduct and actually prohibited unethical conduct.
It was decided on mitigating circumstances, namely; that the wrong of one attorney was
cancelled by the wrong of another, and, somehow, pursuant to the judiciary¶s mysterious ways,
said cancellation did not allow either party¶s misconduct to rise to the wrong level, a level
warranting discipline. Still, given the facts gleaned from the Bar record, we believe Henry John
Martocci¶s unprofessional conduct outweighed that of his opponent, and gave definite
indications of a bad temper that could lead to serious obstructions of justice. It appears that he
was let off the hook for some unstated reason or the other ± another one of God¶s mysteries.

Now in our review of the Martocci disciplinary files we are admittedly discussing incidents
occurring a decade or more in the past. The legal system does change, although the wheel grinds
slowly as more and more people on the bottom are ground to bits by injustice ± those who
occupy the seats of privilege on top of the wheel may eventually find themselves on the bottom
as it turns. Times have apparently changed, at least in respect to disciplining attorneys involved
in pissing matches. Now both attorneys may be disciplined instead of allowing their offenses to
cancel each other out.

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THE ASS CLOWN AND SCUM SUCKER CASE

Take, for instance, how justice was served by The Florida Bar in a recent pissing match between
two attorneys who eventually brought complaints against one another ± Florida Bar Case No.
2009-10487 (13C) and No. 2009-10745(13C),

An email µflaming war¶ started in May of 2008 between Tampa attorney Nicholas Francis
Mooney and Palmetto attorney Kurt D. Mitchell. Mr. Mooney, born 1960, was admitted to the
Florida Bar in 1985, is not specially certified in any area of practice, and had no published record
of previous complaints. He is also licensed to practice in Pennsylvania and the District of
Columbia. Kurt D. Mitchell, born 1974, was admitted to the Florida Bar in 2005, is not specially
certified in any area of practice, and had no published record of previous complaints.

Mr. Mitchell, then 34, represented the plaintiff in a suit against Volkswagen of America. Mr.
Mooney, then 48, represented the defendant. Their 14-year difference in age and 20-year
difference in experience practicing law was an important factor in their contentious exchanges.
The senior addressed his junior as Sparky, and even worse, as Junior, while the younger lawyer
addressed his elder as Corky, and even worse, Old Hack. The more experienced attorney
reportedly won the case: a judged dismissed it with prejudice, i.e. complaint could not be
reasserted. We could apply their own projections to their mutual conduct: it was unprofessional,
juvenile, and even asinine, the base nature we all have been reduced to when angry at one time or
another and our high standards are forgotten.

The two lawyers were µflaming¶ each other in heated email exchanges, their audience being
multiple persons in both of their law offices. The dynamic duo had some difficulty pinning down
hearing dates in the initial exchanges. At one point Mr. Mooney apparently had to attend to his
child¶s surgery and could not appear on a certain date. Fed up with the delays, which appear to
be in part his own fault, Mr. Mitchell called Mr. Mooney an ³ass clown´ and derogated Mr.
Mooney¶s special needs child, insinuating that the child had had hundreds of surgeries. He said
Mr. Mooney¶s own language skills were that of a nine-year old, and that Mr. Mooney should not
hate Mr. Mitchell but should hate his own genetics. He called Mr. Mooney a jerk and a lying,
dilatory, mentally handicapped person. Mr. Mooney claimed Mr. Mitchell was the retarded
development of sperm deposited on the back seat of a Ford Pinto. The pissing match went on and
on:

Mitchell: It is clear you cannot deal with the pressure of litigating«. I told you on multiple
occasions what time frame I was looking to conduct the deposition«.

Mooney: Wow, you are delusional!!!! What kind of drugs are you on??? I can handle
ANYTHING a little punk like you can dish out. Remember, I have been doing this for 20+ years
and have had not a single heart attack as a prosecutor for 15 years. I have handled case loads in
excess of 200 cases, many of which more important/significant than these little Mag Moss claims
that are handled by bottom feeding / scum sucking / loser lawyers like yourself«. I have actually
done a jury trial am and looking forward to teaching you a lesson (please call Patrick Cousins, he
is still hurting from the ass whooping I gave him more than a year ago) while I know that you
have a NOTHING life, other people do have more important things to worry about than little
Kurtle boy«.

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Mitchell: Yes, Mr. Mooney, I am very impressed by your email«. Oh and by the way the reason
you«hate me is not because I am a ³scum sucking´ and ³loser attorney´ but because I am the
exact opposite, I am a very competent, hard working attorney who gives my clients vigorous
representation and does not get bullied by high powered 20 year defense attorneys who practice
form pleadings. Finally, God has blessed me with a great life: I work when I want to, I ride my
dirt bike and atvs with my kids when I want to, I ride my motorcycle when I want to, etc. See the
secret is obey the bar rules i.e. only take as many cases as you can diligently and capably handle
so I can guarantee you I work far less than you. So you keep on ³handling´ your heavy case
loads and I will go on obeying the bar rules and limiting myself to the number of cases I can
diligently and capably handle and enjoying my kids, wife and toys«.

The hostility was carried over to a deposition taken December 19, 2008: The deposed witness
said that Audi of America made money based on the sale of vehicles and parts to dealers.
Mitchell interjected and said the statement was ³not accurate.´ Mooney said ³Okay, Mr.
Mitchell,´ as if suggesting that should be enough of that, whereupon Mitchell proceeded to start
a heated exchange, saying that if Mooney had an objection to make, then he should make it, as
he was not in the mood to listen to Mooney¶s ³long diatribes.´ Mooney said, ³You can choose to
listen, but when you sit there and say that is not accurate, you¶re accusing the witness of lying.´
Mitchell persisted in arguing with Mooney, referred to him as a twenty-year attorney, Mooney
addressed Mitchell as Junior, and brought up Mitchell¶s email claim that Mooney¶s special-needs
child was a retard.

The Florida Bar Complaint against each lawyers stated that ³The ongoing hostility demonstrated
between (Mooney) and Mitchell has served to prohibit them from effectively resolving
scheduling matters and conducting the litigation in a professional manner, which conduct is
contrary to honesty and justice and is prejudicial to the administration of justice and to our
system of justice as a whole.´ Hence they violated Rule 3-4.3 (commission of any act that is
unlawful or contrary to honesty and justice) and Rule 4-8.4(d).

Nicholas Francis Mooney was given a public reprimand, ordered to take and pay the $750 fee for
taking the Bar¶s Professionalism workshop, and to pay Bar costs totaling $2,470. When
considering the standards for imposing punishment, one case mentioned was the case of Florida
Bar v. Martocci, 791 So.2nd 1074 FLA (2001). That was the casing involving Florence Berger
nee Patton, which we shall discuss elsewhere. During various times during the course of that
litigation, Martocci made unethical, disparaging and profane remarks to belittle and humiliate
Florence Patton and Florence Patton¶s attorney. Martocci actually physically threatened her
father in a courtroom confrontation. Martocci was found guilty of violating Rule 4-84(d), and
was given a public reprimand and two years¶ probation.

The Martocci case was not mentioned as a standard for punishment before imposing sanctions on
Kurt D. Mitchell. He drew a ten-day suspension from practice, was ordered to take the Florida
Bar¶s Anger Management workshop, and to pay Bar costs of $1,998.

WHO CARES ABOUT BAD MANNERS OF LAWYERS?

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So lawyers have bad manners. So what? Who cares about lawyers? If the kitchen is too hot for
some of them, let them get out of it. Let them destroy one another if they can! But we may need
a lawyer some day, and we do not want to be the collateral damage of their bad tempers.

Still, a litigant may not care if his attorney hurts someone¶s feelings when the misconduct is
intentionally or habitually done by a Rambo lawyer to win his case. My side is the just one, so let
justice be done by any means! If there are Rambo lawyers on both sides, a hell of a battle is
bound to ensue.

All too often the party on the other side appears pro se, has no legal experience hence is a sheep
among wolves. We have advertised the late Henry John Martocci as ³Hell on Wheels´ in the
previous part of our series. In our next part we shall go from bad manners to conduct so
unprofessional over a protracted period of time that it will give us cause to wonder at the veracity
of the Bar officials when they refer to some recent case as the most egregious they have ever
seen.

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