Updating our Jul. 25, 2007 post:
A plaintiffs lawyer who alleged in court that his adversary’s questions at a deposition caused his client emotional distress has been sanctioned for filing a frivolous suit.
New Jersey Superior Court Judge Alfonse Cifelli entered an order March 26, assessing $2,500 in sanctions against Bruce Nagel, of Roseland, N.J.’s Nagel Rice. He must also pay his adversary’s legal fees of $11,630.
However, Cifelli stayed both payments until the Appellate Division rules on a pending appeal of his ruling last October that dismissed Nagel’s suit.
Cifelli, who sits in Newark, had found Nagel failed to state a claim, holding the litigation privilege allowed the adversary, Judith Wahrenberger, to pursue questions she considered relevant without fear of being sued and that the questions were not “extreme or outrageous.”
Nagel says he has received much encouragement from fellow plaintiff’s lawyers for his action; however, any suspension of the usual litigation privilege in favor of personal liability for attorneys would have been very much a double-edged sword, since the asking of emotionally distressing questions during depositions is not exactly a rarity on either side. (Maria Vogel-Short, New Jersey Law Journal, Apr. 9)(link fixed now).
3 Comments
This decision affirms settled law. The litigation privilege is absolute. No one may endanger the rent seeking aim of the law profession.
Immunity increases an activity, liability decreases it. These self-dealt privileges represent a form of stealth industrial plan. The litigation privilege says, we will grow litigation, relative to more liable activities. The public has not approved such economic favoritism through any legislature. It comes from the unelected Supreme Court, not competent nor empowered to favor the growth of a sector of the economy.
Ted and I have bashed heads over tort reform. I oppose tort reform. I have proposed ending all litigation privileges. Let torts do it work to deter, to improve the low quality of litigation, to improve the conduct of litigation (as in this alleged case), to deter the filing of so many weak cases.
These behaviors may represent legal malpractice. The adverse third party should be able to sue the lawyer for legal malpractice without privity. No other party, but the lawyer, still has a privity obstacle to accountability to third parties.
The link to the story appears to be broken, links as a “mail to:”
I find this a good start, but wonder why sanctions against lawyers are so low. The sanctions in this case, it seems to me, would be more fair had the fines included an extra zero.
I’d certainly notice a fine of $2.5K. I’m not sure a lawyer billing $300/hr and upward would. That’s barely a day’s pay. Lot’s of people get docked a day’s pay and shrug it off.