Hinds v. County of Westchester

Background

This order concerned attorney Bonita E. Zelman’s conduct while representing Desmond Hinds and other plaintiffs at a five-week trial in May and June 2018. The jury awarded Hinds and the other plaintiffs $200,000. During the trial, the court threatened sanctions on at least four days and, on June 27, 2018, issued an order requiring Zelman to explain why she should not be sanctioned. The court later extended the deadline for her response after submissions from her professional-responsibility counsel.

Conduct at Issue

After reviewing Zelman’s submissions and the trial transcript, the court found repeated misconduct. It found that Zelman disregarded orders limiting questions about whether officers provided medical attention to Mr. Henry, whether Mr. Henry was handcuffed, whether officers laughed at the incident, medical-test testimony from an expert, and statements from defense counsel’s opening argument. The court also found repeated use of improper leading questions, argumentative questions, redundant questions, and questions asked without a good-faith basis.

The court identified additional conduct, including eliciting testimony that clients had been “proven innocent” when their criminal case had instead been dismissed by prosecutors; reading a coroner’s statement that Mr. Henry’s death was a “homicide”; eliciting emotional testimony about another client’s relationship with Mr. Henry despite an earlier ruling; questioning the chain of custody of toxicology reports without a good-faith basis; and continuing to ask about a defense witness’s attorney after the court ruled that topic inappropriate. The court also found that Zelman twice referred during her closing argument to evidence that was not in the record, and found credible an accusation that she looked and gestured toward her client during cross-examination. The court further found that she arrived late at least twice.

The order separately addressed liens taken by Dr. Rembar against recoveries for five of Zelman’s clients. The court made no finding about whether the liens were proper, but concluded that facilitating them was not sanctionable misconduct.

Legal Standard and Ruling

The court explained that a federal district court has inherent authority—the power arising from its responsibility to manage its proceedings—to sanction parties or attorneys who act in bad faith, vexatiously, wantonly, or for oppressive reasons. The court stated that this power must be used with restraint and that an attorney must receive specific notice of the alleged misconduct, the standard being applied, the authority for the proposed sanctions, and an opportunity to respond.

The court concluded that Zelman’s misconduct was serious and persistent. It stated that, except for the passage of more than two years since the trial and the prior resolution of fee disputes, it would have imposed “very serious sanctions.” Instead, the court withdrew its order to show cause and did not impose sanctions in this order. It directed the Clerk to send the order to the Committee on Grievances of the Southern District of New York and to the Disciplinary Committee of the New York State Judicial Department, and stated that it would provide the trial transcript if requested.