Now THIS Is “Conduct Prejudicial To The Administration of Justice”!

The late Joe Jamail, role model...

The late Joe Jamail, role model…

Almost all jurisdictions include in their lawyer ethics rule a catch-all provision, Rule 8.4 (d), that says that is is professional misconduct for a member of the bar to

(d) Engage in conduct that is prejudicial to the administration of justice;

Virginia is one state that omits this prohibition as too vague; D.C.’s version says that a lawyer must not engage in conduct that is seriously prejudicial, whatever that means. My position is that such a rule is necessary, since no set of rules can cover every situation, and lawyers, I have found, are especially creative in finding new ways to be unethical.

Texas Super Lawyer Joe Jamail (who died last December) established the proposition that a lawyer could prejudice the administration of justice by his spectacular incivility in this deposition:

The Delaware Supreme Court condemned Jamail’s conduct as “rude, uncivil and vulgar,” saying that it abused the privilege of appearing in a Delaware proceeding,” and showed “an astonishing lack of professionalism and civility.” (The immortal quote from the video is Jamail telling his adversary counsel that he “could gag a maggot off a meatwagon.” The deposition deteriorated into a Trumpian insult-fest, with Jamail calling the other lawyer “Fat boy” and being called “Mr, Hairpiece” in return.) The court went on to call Jamail’s unprofessional behavior “a lesson for the future—a lesson of conduct not to be tolerated or repeated.”

Following the judicial reprimand,  Jamail said,  “I’d rather have a nose on my ass than go to Delaware for any reason.”

But even Joe never did this.

Las Vegas lawyer James Pengilly is denying allegations that he pulled out his gun to highlight an argument during a deposition. He was acting as his own lawyer —always a bad idea–in a defamation lawsuit. He admits to having  a gun with him, but claims that the opposing lawyer’s allegation allegation that he pulled it out as intimidation is false.

Well, you decide. Here, in part, is the stenographer’s transcript (and as an aside, she’s quite a cool customer, just typing along while all this was happening):

Pengilly: “Do you know why everybody at the loft calls you Big Bird?”

Hayes’ client: “No.”

Hayes: “Hold on. Before—

Pengilly: “You have no idea?”

Hayes: “Argumentative. Assumes—”

Pengilly: “You have no idea?”

Hayes: “I think you’re trying to harass my client.”

Pengilly: “You’ve never heard that?”

Hayes: “Mr. Pengilly.”

Hayes’ client: “Never.”

Hayes: “Mark, calm yourself a little bit, man. James, what’s—Big Bird?”

Pengilly: “Big Bird. You have no idea why people call you—”

Hayes’ client: “Never heard the claim.”

Hayes: “What’s the relevance to this lawsuit?”

Pengilly: “Because apparently somebody thinks they’re entitled to damages, and, in reality, they’re not entitled to anything, because somebody is the dipshit younger brother—”

Hayes: “All right.”

Hayes’ client: “Did you just call me a dipshit?”

Pengilly: “Yes. Dipshit. Yes.”

Hayes’ client. “This is over.”

Hayes: “This depo is over.”

Pengilly: “Good for you. Have fun.”

Hayes: “Mark, Mark, Mark.”

Hayes’ client: “You called me a dipshit, motherfucker.”

Pengilly: “Yeah. You’re a dipshit fuck.”

Hayes: “Hey, hey.”

Pengilly: “Fuck you.”

Hayes: “Hey, hey.”

Hayes’ client: “Get my keys. Did you see that?”

Hayes: “Mark, Mark.”

Pengilly: “Are you ready for it?”

Hayes: “Mark.”

Pengilly: “Are you ready for it?”

Hayes’ client: “I’m ready all day long.”

Hayes: “No good—no good can come from this.”

Hayes’ client: “Where are my keys and stuff? Get out of this fucking piece of shit’s office Careful mother—–.”

Pengilly: “Oh, yeah, okay, big boy.”

Hayes: “What are you doing now? If you pull the gun, I’m going to call the police.”

Pengilly: “Get out of here. Get out of here right now.”

(Pengilly continues to order Hayes and his client out of the office)

Hayes: “Are you recording this?”

Pengilly: “Get out of here.”

Hayes’ client: “You pulled a gun on me, Pengilly!”

Hayes: “Mark—hey, hey, hey, I don’t want to get shot.”

Hayes’ client: “He pulled a gun on me!”

Hayes: “Hey!”

Pengilly: “Get out of here. Get out of my office.”

Hayes: “He’s grabbing a gun with his right hand in his back pocket!”

Hayes’ client: “Put that down in the fucking notes.”

Hayes: “You got it?”

Hayes’ client: “He’s got a gun in his back pocket. The motherfucker comes to a deposition with a gun.”

Hayes: “Let’s go.”

Pengilly: “I have a CCW [concealed carry weapon] dumbass.”

Hayes’ client: “I don’t give a fuck about a CCW. I’ll own your fucking ass.”

Pengilly told the press that he never brandished the gun, and that everyone over-reacted  when they realized he was carrying one. “I always carry a gun because I’m an attorney and people don’t like me,” he told the press.

I wonder why?


Facts: ABA Journal


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