Monday, February 22, 2010

The Whole Tooth And Nothing But

The Illinois Administrator has filed a disciplinary complaint against a lawyer alleging misconduct in the course of prosecuting a dental malpractice case involving a tooth extraction allegedly gone wrong. There had been an investigation by the Department of Financial and Professional Regulation that was the subject of a motion in limine that had been granted. The complaint alleges that the attorney ignored the court's order in the following exchanges:

Before reconvening the jury, Judge Drazewski cautioned Respondent as follows:

THE COURT: All right. Are we crystal clear with respect to no reference in any way shape or form to the Illinois Department of Professional Regulation (sic) in any way shape or form? Mr. Ginzkey?

MR. GINZKEY: [No response].

THE COURT: I want to make sure, because no sanctions have been requested nor is the court considering same at this time. But to the extent that there would be a violation of the order in limine the court would consider the next step if appropriate. So I’m making sure at this time Mr. Ginzkey that you're aware of what the court's ruling is.

MR. GINZKEY: My hearing is fine, Your Honor.

THE COURT: All right, thank you counsel.

Judge Drazewski reconvened the jury, and Respondent resumed his questioning of [the opposing client] Dr. Koe. Respondent’s questions included the following:

Q: Doctor, I’m going to ask you another yes or no question. Do you think you can answer it yes or no?

A: I can answer yes or no but I don’t know whether I can give you a yes or no answer if you don’t ask me the question and I don’t understand it.

Q: Doctor, it's true, is it not, that an inspector asked to see your sterilization process and you refused to let her do that the month after this occurrence?

MR. BRANDT [opposing counsel]: If the court please?

A: I don't—

THE COURT: Don't answer the question. The objection is sustained and we'll take up this matter outside the jury's presence after they have left for the day. Please disregard the question. That is not only to the witness but to the jury.

Q: Doctor, didn't you write a letter and sign it saying exactly that?

MR. BRANDT: Court please—

Outside the jury’s presence, Judge Drazewski announced that it found Respondent to be in direct contempt of court and would impose a fine in the amount of $500.00.

The complaint quotes the contempt finding:

The record reveals that Ginzkey's actions in this case were not made in good faith. Instead, he was unhappy with the trial court's ruling regarding the admissibility of the IDFPR information and simply chose to disregard that ruling. Despite numerous admonitions from the court to desist, he continued to try to get information before the jury that the court had barred. The best that can be said of Ginzkey's position is that he really believed the court's ruling was erroneous. However, as we explain, Ginzkey's strong belief is utterly irrelevant.

Whether the trial court's underlying decision—which precipitated the contemnor's action—is "wrong" is of no consequence in contempt proceedings and, therefore, does not justify disobedient behavior. We emphasize that even when a court's decision is erroneous, the court is entitled to—and, indeed, our system of justice requires—dignity and obedience. Trial courts will occasionally make erroneous rulings, particularly in cases that involve complicated questions regarding the admissibility of evidence, like this case. However, our system of justice deals with such errors by providing for appeals. (That Ginzkey fully understands the appellate process is perhaps best shown by the very appeals he has brought to us in these consolidated cases.)

(Mike Frisch)

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