Revson v. Cinque & Cinque, P.C.

• Decision Date: 22 November 1999
• Docket Number: No. 97 Civ. 9236 DC.,97 Civ. 9236 DC.
• Citation: 70 F.Supp.2d 415
• Parties: Rommy REVSON, Plaintiff, v. CINQUE & CINQUE, P.C., Defendant.
• Court: U.S. District Court — Southern District of New York

70 F.Supp.2d 415

Rommy REVSON, Plaintiff, v. CINQUE & CINQUE, P.C., Defendant.

No. 97 Civ. 9236 DC.

United States District Court, S.D. New York.

November 22, 1999.

Morvillo, Abramowitz, Grand, Iason & Silverberg, P.C., By Elkan Abramowitz, Elizabeth Small, New York City, for Respondent Judd Burstein.

Marc Fernich, New York City, for Plaintiff.

Cinque & Cinque, P.C., By Robert W. Cinque, James P. Cinque, New York City, pro se.

OPINION

CHIN, District Judge.

This case presents the question of when a lawyer crosses the line from zealously representing a client to abusing the legal process. The Second Circuit recently observed that "determining whether a case or conduct falls beyond the pale is perhaps one of the most difficult and unenviable tasks for a court." Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 340 (2d Cir.1999). Here, the conduct of Judd Burstein, Esq., counsel for plaintiff Rommy Revson, was clearly and unmistakably "beyond the pale." Burstein engaged in a pattern of offensive and overly aggressive conduct that multiplied these proceedings and caused significant harm to Robert W. Cinque, Esq., and his law firm, defendant Cinque & Cinque, P.C. (the "Firm").

Those tactics included the following:

• writing a letter to Cinque threatening to "tarnish" his reputation and subject him to the "legal equivalent of a proctology exam";

• making a sham offer to settle by setting an unreasonable deadline for Cinque to respond and then immediately filing suit even though Cinque met that deadline by indicating a desire to discuss settlement;

• publicly accusing Cinque of fraud without any concrete evidence to support the claim;

• threatening to interfere with the Firm's other clients, including (i) conducting an investigation to identify those clients, (ii) contacting one or more of the Firm's former clients, and (iii) seeking permission to send a letter to all the Firm's clients to inquire as to "experiences, good or bad," with the Firm's billing practices;

• serving overly broad subpoenas, including a subpoena for all the Firm's banking records and even a subpoena seeking records from the golf course where Cinque played golf;

• threatening to add a RICO claim;

• threatening to sue Cinque individually and to seek discovery of Cinque's personal finances;

• threatening to send a letter to the Court accusing Cinque of criminal conduct if he did not capitulate to Revson's demands;

• making good on his threat to "tarnish" Cinque's reputation by contacting a reporter some weeks before trial, explaining that Revson had sued Cinque for fraudulent billing, and giving the reporter documents as well as names of former clients;

• engaging in unfair tactics at trial, including cross-examining Cinque in an unfair manner; and

• repeatedly attacking Cinque in an offensive and demeaning fashion, including calling Cinque "a lawyer who ... has acted in a manner that shames all of us in the profession," "a disgrace to the legal profession," and an example of "why lawyers are sometimes referred to as snakes," and accusing Cinque of "engag[ing] in the type of mail fraud that has led to the criminal conviction of other attorneys," being so "desperate for money he resorted to ... extortion," and being "slimy."

Burstein's tactics turned what should have been a simple dispute between a client and her attorney over the amount of a fee into a difficult, unseemly litigation that was intended from the outset to damage Cinque's reputation.

Burstein defends his actions by arguing that he was only doing his duty, that he was only doing his best to represent Revson zealously and aggressively, and that he always acted in good faith and in an objectively reasonable manner.

I am not persuaded. A lawyer's duty to represent his client zealously does not permit him to treat his adversary or parties in an offensive and demeaning manner or to engage in a course of conduct intended to coerce a settlement through improper threats and harassment. Although a lawyer must represent his client zealously, he must do so within the bounds of the law. An attorney is a professional and an officer of the court, not a hired gun or mercenary whose sole motivation is to win or an attack dog whose sole purpose is to destroy.

Burstein did not act within the bounds of the law here. Rather, he acted in bad faith and with reckless and utter disregard for the harm that Cinque and the Firm would suffer as a result of his "Rambo" tactics.

Consequently, sanctions will be imposed against him. For the reasons set forth below, sanctions will not be imposed against Revson, although she will be assessed costs pursuant to 28 U.S.C. § 1920.

The following constitute my findings of fact and conclusions of law.

FINDINGS OF FACT

A. Revson's Relationship with the Firm

Revson is the inventor of the "scunci," sometimes referred to as a "scrunchy," a cloth-covered, elasticized hairband that women typically wear around ponytails. Millions of dollars worth of scuncis are sold every year, and as the patent holder, Revson is often in litigation to enforce patent and licensing rights.

In February or March of 1993, Revson was involved in an arbitration in Philadelphia with L & N Sales & Marketing, Inc. ("L & N"). She was unhappy with her then-attorneys, and replaced them with Cinque and the Firm.

By retainer agreement dated March 24, 1993 and executed by her on March 25, 1993, Revson retained the Firm to represent her as "litigation counsel" in connection with a dispute with L & N and "generally" in connection with her activities as "creative artist, inventor and patent holder." (PX 1).¹ The agreement, which was signed by Cinque, advised Revson that Cinque's "customary" hourly billing rate was $325 and that his brother, James Cinque, billed at the rate of $300 per hour. The agreement further provided:

While we keep daily records of the time we spent [sic], in fairness to you in this matter involving the many issues which arise from the current dispute with L & N our billing will take into account not only the amount of time spent, but also the result achieved.

Of necessity, a fair amount of duplication of attorney effort and time must take place, and I do not believe it appropriate to charge you the full rate for this. At the same time, if we are able to achieve an outstanding result or substantial benefit for you, then our billing would be adjusted accordingly following consultation with you.

(PX 1).²

For almost five years, Revson and Cinque enjoyed an excellent relationship. The Firm represented Revson on a number of patent and licensing matters. Revson became perhaps the Firm's most important client and over the course of nearly five years she paid the Firm almost $400,000 in fees. The Firm never raised its hourly rates and often charged Revson less than the amount of the time calculated at the usual rates; the Firm reduced its bills by some $50,000 over the course of 1996 and 1997. (Trial Tr. at 467-68, 667 (Cinque testifying that he told Revson about reductions), 693-700; see, e.g., DX D, PP; but see Trial Tr. at 246-47). On at least one occasion, after Cinque negotiated a $300,000 licensing fee for Revson, he billed her on a percentage basis — five percent of the $300,000 fee. (DX C & Trial Tr. at 463-65).

Throughout the representation, the Firm provided bills and other billing information to Revson. Many if not all of these bills were also sent to Revson's accountants for their review. (See, e.g., PX 2-4, 9-10, 13, 16, 18-19, 21-24; DX I, J; see also Trial Tr. at 516-17, 690). At times, the Firm provided Revson with detailed narrative descriptions and at times it sent her the actual time sheets. (See, e.g., DX F, G, I; PX 2-11, 13, 14, 15, 16-24). In or about May 1997, Revson informed Cinque that it was "not necessary" to send the time sheets; Cinque confirmed this in a letter dated May 8, 1997, and advised Revson that the time sheets would be available for her to review at any time at her request. (DX EE).

The relationship between Revson and Cinque became more than just a business relationship. As Revson described it:

He [Cinque] was like a brother that I didn't really have. He was a friend. He and Jane [referring to Jane Klein, Cinque's companion] were both friends. We had a lot of fun times together.

(Trial Tr. at 62-63). At one point, Cinque and Klein visited with Revson and her son and his girlfriend for ten days at a house Revson had rented in Sun Valley. (Id. at 184, 465).

In or about February 1997, Cinque and Klein visited Revson at her home in Florida for a working vacation. They were there for several days and Cinque spent some portion of the time working with Revson to prepare for the L & N arbitration. (Id. at 65-66, 516, 518-19). After Cinque and Klein left, Revson wrote Cinque a note, which read as follows:

Dear Bob & Jane,

Sadness, tears, love, emptiness, and yet, happiness, belonging and a strong sense of friendship and family fill my heart as your little white car is pulling away from my happy little orange cottage (that you got me from Riviera).

Time flies when we are together. My happiest moments are probably dinner, cocktails, and morning greetings when you both are near....

In my life, very few people have believed in me and supported me and took the time out to understand me, Both of you did! For this, I love both of you....

One night at dinner, I had mentioned that I would give you 10% (ten percent) of whatever you recover for me from L & N. I want to unequivocally state that is exactly what "the deal" is. You stood by me and deserve it!

(DX E) (emphasis in original).

Revson was so pleased with the Firm's services that in early October 1997, she presented Cinque with a Mercedes-Benz, adorned with a red ribbon, as a gift. She did this in recognition of his efforts in representing her, particularly with respect to the licensing matter referred to in Revson's note as "Riviera." After considering the propriety of...