Don’t Be An Unhappy “CAMP”er: Ignoring Second Circuit Mediation May Result In Grievance Panel Referral

 Three people talking - 3d renderThe Second Circuit advises litigants on its website that its mediation and settlement program (known as “CAMP”) is a long-standing and integral part of the court’s appellate process.  The Second Circuit assigns “experienced and skilled circuit mediators” to work with counsel and their clients to resolve disputes on the court’s civil docket at no cost to the parties. Although the mediation process is considered “voluntary,” failing to appear at a CAMP may result in sanctions and, possibly, a referral to the Court’s Grievance Panel.

In late 2015, parties to a Second Circuit appeal were directed to appear at the offices of a prominent mid-town New York law firm for a CAMP mediation.  The mediator appointed by the Court was a well-regarded litigation partner at the law firm.  Appellant’s counsel failed to appear at the mediator’s office at the appointed time.  By order, dated January 26, 2016, Circuit Judge Danny Chin ordered the parties “to show cause why disciplinary or other corrective measures should not be imposed on them” for failing to appear for the mediation.

In response to Judge Chin’s order to show cause, counsel advised the Court that that the appellant had “replaced” him as counsel and revoked his authority to speak on appellant’s behalf.  Counsel anticipated that appellant’s new counsel would make a formal substitution of counsel, but apparently never did so.  Judge Chin observed in his Order, dated March 14, 2016, that a party’s decision to replace counsel did not relieve counsel of their obligation to comply with Court orders until such time as the Court granted counsel’s party to be relieved.  “As counsel of record, they were obligated to respond to the Court’s order that they appear at a mediation conference, at the very least to notify the appointed mediator that their representation was in question and to request an adjournment.” However, Judge Chin found it more troubling that appellant’s counsel viewed the court’s mediation program as optional. Judge Chin found it remarkable that counsel did not even show the court appointed mediator the professional courtesy of a telephone call to advise her that they were not intending to appear.

Judge Chin determined that he would not refer the matter to the Court’s Grievance Panel based upon his determination that: (1) counsel’s conduct was limited to one case and not likely to be repeated; (2) counsel accepted responsibility and conceded error; and (3) counsel did not act in bad faith.

Practice Tips 

First, merely because a client has relieved a lawyer as his counsel, in both the trial court and on appeal, counsel should not assume that his judicial obligations have ended.  Until such time as a motion for substitution of counsel is filed and granted by the court, counsel’s failure to respond to court orders may result in the imposition of sanctions.  At a minimum, counsel should alert the court (or, in this case, the court-appointed mediator) that a substitution of counsel is in the offing.  As a practical matter, this communication may provide the client additional time to effectuate a substitution of counsel.  It also apprises the court and the adversary that conducting a mediation before the change of counsel has been effectuated would not be efficacious in resolving the dispute.

Second, a party’s failure to appear at a court-directed “voluntary” mediation, during either a trial court or appellate proceeding, also may result in the imposition of sanctions.  In the SDNY, an increasing number of civil cases are being referred to mediation.  Although the mediation process is confidential and the parties’ stated positions during mediation are never disclosed to the judge or magistrate handling the matter, it may be brought to the court’s attention if a party fails to appear for the mediation or, in the judgment of the mediator, fails to participate in the mediation in good faith.  Although court-annexed mediation proceeds on a separate track from the court’s discovery scheduling order, the mediation program is an integral part of the judicial resolution process and must be treated as such by the litigants.

Defense Lawyers: Keep This Decision In Your Back Hip Pocket

Having now completed discovery, you have provided the client with a thorough assessment of its potential liability exposure in the case. You are set for trial.

On the eve of trial, plaintiff’s counsel serves notice that it plans to call four eyewitnesses and an expert, and introduce 18 photos and a video, none of which were provided pursuant to your earlier discovery demand or a subsequent Preliminary Conference Order. As any trial lawyer who practices in the Second Department can attest, this is not an unfamiliar scenario. But what is exasperating is the trial judge’s denial of defendant’s motion to preclude the untimely evidence from coming in at trial and effectively places the court’s imprimatur on plaintiff’s bad behavior, and assault, so it was important to get the right lawyer for this, and there are easy to find at sites like www.denvercocriminaldefenselawyer.com/assault/.

Given the widespread tendency by some Second Department trial judges to “cut  slack” for those who repeatedly flaunt the court’s rules regarding timely disclosure, it was refreshing to review the decision of the Appellate Division, Second Department, in Arpino v. F.J.F. & Sons Electric, 2012 NY Slip Op 08271, 201-02636 (12/5/12) which held a Long Island law firm responsible for its “intentionally false and misleading” responses to discovery demands, which the Court held could not be cured by belated disclosure.

In the interest of full disclosure, it was the defendant who committed the wrongful conduct in Aprino, not the plaintiff. However, because this is a “defense blog”, we will discuss the importance of the Court’s holding from a defense perspective. Needless to say, the conduct at issue is reprehensible and sanctionable no matter which side commits it.

As reported by the New York Law Journal on December 6, 2012, the Second Department cited Court of Appeals case law to the basis for its ruling.  The Court stated:  “As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system.”  Further, the appellate panel stressed that the Court of Appeals had previously found  that “chronic and incompliance with deadlines breeds disrespect to the dictates of Civil Practice Law and Rules” and stressed that court orders cannot be ignored with impunity. On the strength of these admonitions from the the state’s highest court, the Second Department ruled that Suffolk County Supreme Court Justice Paul Baisley, Jr. had improvidently exercised his discretion in declining to sanction the defendant’s law firm from professionals at sites like https://www.stoneinjurylawyers.com.

The underlying facts of this auto accident case are fairly straight forward.  In June 2008, the defendants’ Ford Explorer collided with the plaintiff motorcyclist, who alleges that he sustained serious injuries in the accident.  Shortly after commencing an action against the Ford Explorer’s driver and his employer, plaintiff served a discovery demand seeking production of information and accident photos. Thereafter, this discovery was further directed in a Preliminary Conference Order. After missing the deadline for disclosure, a paralegal at the defendants’ firm advised by letter that defendants neither processed photos nor were aware of additional witnesses. This turned out to false.

In its decision, the Second Department rejected the defendant law firm’s claim that it was merely careless. To the contrary, it held that the firm’s responses were “intentionally false and misleading, and were interposed for the purpose of avoiding the defendants’ obligation to provide timely and meaningful discovery responses. The defendants neglected a court-ordered deadline and misrepresentation of the knowledge of possession of clearly discoverable material and information, without providing any excuse for doing so must be deemed willful and contumacious.”

Significantly, the Second Department held that the failure to comply with “basic rules governing compliance with disclosure orders cannot and will not be tolerated in our courts.” Unfortunately, all too often, trial courts not only tolerate and excuse this behavior to the extent that it has become almost accepted practice to “hide the ball” until immediately prior to trial. As a result of limitations placed on the defendants by the appellate court’s modification of the trial court’s order, substantial prejudice to plaintiff was prevented and appropriate sanctions imposed.

It is worth noting that plaintiff’s counsel was diligent in pursuing discovery throughout.  This is not a case where plaintiff arguably could have been more diligent in pursuing disclosure.

Therefore, printout a copy of Aprino, slip it into your back hip pocket, and pull it out in court the next time you find yourself in this situation.