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24747 - In the Matter of Harvey L. Golden
Davis Adv. Sh. No. 4
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of Harvey L. Golden, Respondent.

Opinion No. 24747

Heard July 8, 1997 - Filed January 19, 1998

PUBLIC REPRIMAND

J. Mark Taylor, of Kirkland, Wilson, Moore, Allen, Taylor &

O'Day, P.A., of West Columbia; David H. Wilkins, of Wilkins &

Madden, P.A., of Greenville; and John P. Freeman, of Columbia,

all for Respondent.

Attorney General Charles Molony Condon and Senior Assistant

Attorney General James G. Bogle, Jr., of Columbia, for

Complainant.

PER CURIAM: In this attorney grievance matter, the Respondent

Harvey L. Golden ("Attorney") is alleged to have committed misconduct by

making gratuitously insulting, threatening, and demeaning comments in the

course of two depositions. It is alleged that Attorney's conduct violated Rules

4.4 and 8.4 of the Rules of Professional Conduct, Rule 407, SCACR, and

section 5 of the Rule of Disciplinary Procedure, former Rule 413, SCACR.

Attorney denies any misconduct. He contends his actions during the

depositions were reasonable and necessary to obtain responses from hostile

witnesses. Attorney further asserts his comments after one deposition were

merely intended to be humorous.

Two members of the hearing Panel found misconduct as alleged and

recommended attorney be privately reprimanded for misconduct; one Panel

member recommended the matter be dismissed. The Interim Review

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In The Matter of Golden

Committee unanimously adopted the findings of fact and conclusions of law

set forth in the majority's Panel Report. As to the sanction, all committee

members participating1 recommended some form of public sanction. Three

voted that Attorney be suspended from the practice of law for thirty days;

three voted that he be publicly reprimanded. After hearing arguments of

counsel, reviewing the record, including the court reporter's tape recording of

one of the depositions, and considering the applicable law, we find the

appropriate sanction is a public reprimand.

FACTS

Smith Deposition

Attorney represented Mrs. Doe in a divorce action.2 Pursuant to a

temporary order, Mrs. Doe was receiving alimony. Attorney advised Mrs. Doe

she could jeopardize her alimony if she had a boyfriend prior to her divorce.

Mrs. Doe ended her relationship with Mr. Smith, apparently as a result of

this advice. Thereafter, Mr. Smith contacted Mr. Doe's attorney and

informed her he was having an adulterous relationship with Mrs. Doe. Based

on this information, Mr. Doe filed a motion to terminate Mrs. Doe's alimony.

Attorney noticed Mr. Smith's deposition.

In December 1994, Attorney deposed Mr. Smith. Smith was not

represented by counsel at the deposition. He was a retired school teacher

who had been hospitalized for emotional problems on six occasions within the

previous fifteen years. He suffered from several disabilities including injuries

to his lower back as the result of an automobile accident, debilitating

migraine headaches, and bipolar affective disorder for which he was being

treated with a series of psychotropic medications. The witness's physical and

mental disabilities were fully known to Attorney who agreed that Smith was

not mentally well.

We have reviewed both the written transcript and the audio recording

of the deposition. The following are a few examples from the deposition

transcript that illustrate Attorney's conduct at the deposition:


1One member of the Interim Review Committee did not participate in

this matter.

2Due to the sensitive nature of these matters, pseudonyms have been

used.

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In The Matter of Golden

(1)    [Attorney]:    And who was your lawyer in your first

                              divorce?

          [Smith]:       Me.

          [Attorney]:    Was that because you are cheap or you

                              think you are smart enough to be your

                              own lawyer? Is that what you think?

          [Smith]:    What kind of a question is that?

          [Attorney]:     Its a good question.

(2)    [Attorney]:    I don't need criticism from you. You ain't

                              nearly as good as I am about answering

                              questions or asking them. Just answer

                              my questions, mister.

(3)    [Attorney]:    Don't get snide with me. Just answer my

                              questions or you are going to be in severe

                              difficulty, especially if you make me

                              angry at you. I'm not going to try to get

                              angry with you. Just answer my

                              questions.

(4)    [Attorney]:    You are coming across as an absolutely

                              ridiculous person. But that's okay, you

                              will learn the hard way.

(5)    [Attorney]:    You are not smart enough to question my

                              questions. You are not smart enough to

                              even answer my questions. But do the

                              best you can.

(6)    [Attorney]:    Do you understand English? I speak real

                              clear English.

(7)    [Attorney]:    You -- you must understand that this is

                              not just a test of your telling the truth,

                              this is also a test of your reasonableness.

                              And whether you flunked or not is not

                              going to be subject of my discussion here

                              at this time.

(8)    [Attorney]:    And if you keep your mouth shut I might

                              get on to [the] next question.

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In The Matter of Golden

(9)    [Attorney]:    You are going to jail if you are an

                              obstructionist in this State here, and

                              especially if you are lying.

(10)    [Attorney]:    Well, I am not going to argue with you.

                              You are not smart enough to argue with.

(11)    [Attorney]:    No, you don't tell me how to ask

                              questions. We just take your answers

                              down and we'll deal with you with the

                              judge. See, and then we will see how

                              smart you are.

(12)    [Attorney]:    You are just not smart enough to know

                              what a restraining order is.

(13)    [Attorney]:    So you think it is your scintillating

                              personality that caused him to want to

                              play chess with you?

(14)    [Attorney]:    And when was that?

          [Smith]:     When was that? It was more than once.

                              The first night was New Years Eve.

          [Attorney]:     What year?

          [Smith]:     It was, it was the New Years Eve we left

                              the party.

          [Attorney]:    What year?

          [Smith]:    I would say it was January lst 1994 was

                              the first time we ever did it.

          [Attorney]:     1994?

          [Smith]:    Uh-huh. (Indicating yes).

          [Attorney]:    That's not New Years Eve. January first

                              is not New Years Eve.

          [Smith]:     I know but see the clock goes through

                              12:00. And when it goes past twelve

                              then it is the next day, which makes it

                              January lst.

          [Attorney]:    And no longer New Years Eve, is it?

(15)    [Attorney]:    Did you fight them?

          [Smith]:     Huh?

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In The Matter of Golden

          [Attorney]:     Did you fight them?

          [Smith]:     No, I didn't fight them.

          [Attorney]:    Okay. So they didn't need five, they just

                              needed one, right?

          [Smith]:    I bit one.

          [Attorney]:     Why did you bite him?

          [Smith]:     'Cause I was hungry.

          [Attorney]:     Okay. Where did you bite him?

          [Smith]:     (sigh) He had his foot - -

          [Attorney]:     Where did - -

          [Smith]:     - - in my --

          [Attorney]:    I didn't say why. I - -

          [Smith]:     Okay.

          [Attorney]:    -- Asked you where did you bite him?

          [Smith]:   Okay. Somewhere around his ankle. It

                              was right on top of my face.

          [Attorney]:     Uh-huh. And was that because you were

                              trying to fight them?

          [Smith]:     If you had been there I would probably

                              bite you, too.

          [Attorney]:    No, I'd shoot you before you could bite

                              me.

          [Smith]:     Oh.

          [Attorney]:    Guaranteed. Guaranteed.

(16) Attorney referred to Smith, who had been a patient at Charter

Hospital, as an "inmate" of the hospital.

(17) Smith injured his back moving a box of books while preparing for the

school year. Attorney asked Smith, who was a teacher, if he was the janitor:

          [Attorney]:    You are not a janitor, are you?

          [Smith]:     Huh?

          [Attorney]:     You are not the janitor, are you?

          [Smith]:    Gee, now what kind of question was that?

....

          [Attorney]:    ... When you said you get the desks in

                              order, that's something for the janitor to

                              do, get the desks in order?

Attorney testified the purpose of Mr. Smith's deposition was to destroy

Mr. Smith's credibility. He denied he had any intent to embarrass, delay, or

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In the Matter of Golden

otherwise burden Mr. Smith, or to pollute the administration of justice.

Attorney admitted he made some mistakes in the deposition. For instance,

he stated he allowed Mr. Smith to "get to him" and admitted he should have

set the tone for the deposition.

Jones Deposition

In May 1994, Attorney, who was representing Mr. Jones, deposed Mrs.

Jones, the adverse party in a domestic proceeding. Mrs. Jones's attorney was

present during the course of her deposition, although some of the alleged

comments by Attorney took place off the record when her attorney was not

present.

The grievance complaint alleged that after the deposition, Attorney

stated to Mrs. Jones: "You are a mean-spirited, vicious witch and I don't like

your face and I don't like your voice. What I'd like, is to be locked in a room

with you naked with a very sharp knife." Thereafter, it is alleged that

Attorney said: "What we need for her [pointing to Mrs. Jones] is a big bag

to put her in without the mouth cut out."

At the Panel hearing, Mrs. Jones testified as follows regarding

Attorney's comments after the deposition:


     

. . .It was at the end, and the court reporter was beginning to

     

put her things away. [Attorney] pushed all of his papers at me

     

like that, and he leaned across the table, and he pointed his

     

finger, and he said, "You are a meanspirited, vicious witch, and

     

I don't like your face, and I don't like your voice, and what I

     

want," and at that point he stood up, and he screamed, "What I

     

want is to be locked in a room naked with you with a sharp

     

knife," and I said, "Naked?" He said, "Yes, naked with a sharp --

     

locked in a room naked," and I said "Uh," . . . I then said to

     

[Attorney], "What? Naked? What are you going to do? . . ." And

     

he said, "No, I will kill you with the thing." And at that point

     

..., the paralegal for [opposing counsel], came in . . . and

     

[Attorney] then pointed ... and he said to [the paralegal], "what

     

we need for her is a big bag to put her in without the mouth cut

     

out."

Opposing counsel's legal assistant testified that during a break in the

deposition, she entered the conference room to give opposing counsel a note.

She testified she heard Attorney state that he would like to put a plastic bag

p. 8


In the Matter of Golden

without any air holes over Mrs. Jones.

In his answer, Attorney "adamantly denie[d]" making the "big bag"

comment. However, during the Panel hearing, he admitted making the "big

bag" comment, but stated Mrs. Jones took it out of context. Secondly, he

contended that he had jokingly said that the only way the matter could be

resolved would be to lock Mr. and Mrs. Jones naked in a room with a knife

on the table and let the better participant emerge triumphant.

ANALYSIS

With regard to the Smith matter, the Hearing Panel concluded that

Attorney's actions demonstrated

     

his total disregard and failure to show any respect for the rights

     

of a third party. The extent, the intensity, the sarcasm and

     

maliciousness, the unnecessary combativeness, the gratuitous

     

threatening and intimidation, and the unequivocal bad manners

     

of [Attorney's] conduct could have been for no purpose other than

     

to embarrass or burden [Mr. Smith].

The Panel found Attorney's conduct in the Smith deposition violated

Rule 4.4 of the Rules of Professional Conduct, Rule 407, SCACR. Rule 4.4

provides, in part: "In representing a client, a lawyer shall not use means

that have no purpose other than to embarrass, delay, or burden a third

person . . . ." The Panel concluded Attorney had no legitimate purpose for

his conduct. We concur with the Panel's analysis.

Attorney's words speak for themselves. Even if we assume that the

deposition witness was uncooperative, Attorney would not be justified abusing

this witness in the manner illustrated above. The record further shows that

Attorney interrupted Smith on numerous occasions. Moreover, the audio

recording reveals the volume of Attorney's voice was repeatedly loud, and his

statements were sarcastic, rude, or otherwise inappropriate. He acted in a

threatening and demeaning manner. His conduct was outrageous and

completely departed from the standards of our profession, much less basic

notions of human decency and civility.

While attacking a witness's credibility is a legitimate and often

necessary objective, Attorney's conduct at the Smith deposition went far

beyond this purpose. We find Attorney's bullying of a mentally unstable

witness in the Smith deposition an utterly inappropriate trial tactic.

p.9


In The Matter of Golden

Although Mr. Smith was a hostile witness,3 Attorney's behavior was

unwarranted. If he truly thought Mr. Smith was intentionally being

unresponsive and recalcitrant, Attorney could have recessed the deposition

and moved the family court for an order requiring Mr. Smith to respond

appropriately. We find, by clear and convincing evidence, that Attorney used

means that had no purpose other than to embarrass, delay, or burden a third

person. Thus, he has violated Rule 4.4 by his conduct at the Smith

deposition.

With regard to the Jones deposition, the Panel concluded Attorney had

commented off the record that Mrs. Jones was "mean spirited," that someone

should be "locked in a room naked" with her, and that he would like to put

a bag over her without a hole for her mouth. They found that Attorney

made these comments in an agitated tone of voice. The Panel did not believe

these comments were an attempt at humor, but rather, the Panel found

Attorney's comments were intended to be insulting and degrading. It

concluded that Attorney's conduct tended to pollute the administration of

justice and to bring the legal profession into disrepute. This conclusion was

reached based on testimony of Mrs. Jones, of the legal assistant, and of

opposing counsel who overheard Attorney saying "mean spirited" and "locked

in a room naked." Moreover, Attorney's credibility was damaged by his self-

contradiction as to the "big bag" comment. Initially, he adamantly denied

making the comment, but he later claimed at the Panel hearing that the

comment was taken out of context. We fully agree with the Panel's

conclusions. We find Attorney's comments after the Jones deposition could

not possibly be interpreted as humorous, particularly in light of the serious

nature of the issues and highly charged atmosphere of the deposition.

Attorney's comments only served to insult an adverse party. Rule 8.4 of the

Rules of Professional Conduct, Rule 407, SCACR, is violated when a lawyer

engages in conduct prejudicial to the administration of justice. See also Rule

413, parag. 5.D, Rule on Disciplinary Procedure. We find, by clear and

convincing evidence, that Attorney violated these rules by his misconduct at

the Jones deposition.

We remind the Bar that although a deposition is not conducted in a


3 The transcript and tape recording indicate Mr. Smith was suspicious

and often difficult; at times, Mr. Smith yelled and once threatened to turn

over the conference table. This outburst took place after Smith had been

repeatedly ridiculed and bullied by Attorney. Attorney testified he

deliberately attempted to provoke Smith into an outburst so as to damage

Smith's credibility.

p. 10


In The Matter of Golden

courtroom in the presence of a judge, it is nonetheless a judicial setting.

Because there is no presiding authority, it is even more incumbent upon

attorneys to conduct themselves in a professional and civil manner during a

deposition.

SANCTION

The ultimate authority to discipline attorneys and the manner of

discipline rests with this Court. In re Dobson, III, 310 S.C. 422, 427 S.E.2d

166 (1993). Analysis of the instant case reveals conduct much more egregious

than a previous matter wherein we imposed a public reprimand for similar

behavior. In re Goude, 296 S.C. 510, 374 S.E.2d 496 (1988) concerned a

young attorney's misconduct at a sentencing hearing and outside a courtroom,

where he made insulting remarks towards a child victim in a criminal

matter. We publicly reprimanded the attorney, finding his conduct violated

DR 7-106(C)(6), which prohibits a lawyer from engaging in undignified or

discourteous conduct degrading to a tribunal, and DR 1-102(A)(5) and (6),

which prohibit conduct prejudicial to the administration of justice and which

adversely reflects on fitness to practice law.

Attorney's actions in the present case are much more reprehensible

than that which we sanctioned in Goude. Here, we do not have a single

incident, but two separate matters involving different parties and different

depositions. Here, we do not have a momentary loss of cool, but rather, a

repeated pattern of misconduct over the course of an entire deposition. Here,

we do not have a few negative remarks, but rather, comment after comment

-- seventeen of which are set forth above in connection with the Smith

deposition and two of which are delineated as to the Jones deposition --

intending to intimidate and harass. Here we do not have an inexperienced

attorney, but rather an attorney who has been practicing for over four

decades.

The Panel, which had an opportunity to hear first-hand the testimony

of the witnesses, summed up Attorney's actions in the following way:

[Attorney's] conduct ... exemplifies the worst stereotype of an

arrogant, rude, and overbearing attorney. It goes far beyond

tactical aggressiveness to a level of gratuitous insult,

intimidation, and degradation of the witness. It is behavior that

brings the legal profession into disrepute.

We agree.

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In The Matter of Golden

Attorney urges us to impose no sanction in this matter. Alternatively,

Attorney argues that any sanction be mitigated by his experience and

standing in the profession, his health problems for the past several years,

and his lack of disciplinary history until recently. We approach attorney

discipline matters with a heavy heart, especially in a case such as this one.

Attorney has been a prominent and productive member of this state's bar for

over four decades. He has been a leader nationally in the establishment of

standards for the practice of domestic and family law. He has encouraged

and mentored several generations of highly skilled and respected family law

practitioners, including his two lead counsel in this matter who have so

eloquently presented his case. We do take all of these factors into account.

Nevertheless, we cannot utilize a different set of sanctions for misconduct

committed by a lawyer of high standing and long experience, than that

utilized when similar misconduct is found in a young and inexperienced

practitioner.

We find that a public reprimand should be imposed for Attorney's

violations of Rules 4.4 and 8.4 of the Rules of Professional Conduct, Rule 407,

SCACR, and section 5 of the Rule of Disciplinary Procedure, former Rule 413,

SCACR. Attorney's acts are veritably prejudicial to the administration of

justice and undermine the very foundations of respect for the rule of law.

Accordingly Harvey L. Golden is hereby publicly reprimanded.

PUBLIC REPRIMAND.

C.J.

A.J.

A.J.

A.J.

A.J.

p. 12