Posted: Dec. 1, 2005
THE COURT IS NOT AMUSED
By Celia Cohen
In Richard L. Abbott's name, the "L" does not stand for "litigious," but it might as well have.
Abbott is a lawyer, a solo practitioner in Hockessin, but he probably is better known as a onetime New Castle County councilman who lost his seat in a 2002 Republican primary race that saw Thomas P. Gordon and Sherry L. Freebery back his opponent and get indicted for it.
Abbott lost by nine votes, and he did not go quietly. These days he still spends much of his time squawking about the county. Abbott represents Frank Acierno, a developer who is in court with the county so much that he needs a lawyer the way he needs hardhats on his projects.
Abbott has done his job with gusto. He is an argumentative advocate who does not seem to have an off-switch. In one county case, he walked into the Superior Court with a black cowboy hat and a white cowboy hat and plopped the black one on the county table and the white one on his own. He lost.
In another non-county case Abbott filed for a citizens' group against a Wal-Mart center in Smyrna, he went where lawyers usually fear to go. When he lost that one, he let loose with scathing criticism of Chancellor William B. Chandler III, telling the Delaware State News, "Whatever Wal-Mart wants, Wal-Mart gets. I think the court was afraid of angering state officials who want this project to happen."
Now another judge has had it with Abbott. Superior Court Judge Jan R. Jurden blistered him in an order she issued Monday, telling him to re-file a brief in 10 days because the one he turned in was, as she put it, "plainly disparaging and discourteous."
Jurden especially was not amused that Abbott came close to calling a county board "a group of monkeys."
Within a state legal profession that prides itself on collegiality and civility, Jurden's decision to dress down Abbott is getting attention. Lawyers are talking about it and sending it to one another as fast as you can say, "mouse click."
They are loving it, too. "This is the fastest circulating opinion I've ever seen," one lawyer said giddily.
Abbott is contrite -- up to a point. "I will respect her decision, and I will abide by it," he said, then added, "Read the brief. Certain analyses have been taken out of context."
The case Abbott brought before Jurden is more molehill than mountain. It is about a house built by 395 Associates, one of Acierno's entities, and the county cited it for building code violations on some windows, a handrail and drainage.
Abbott went to the Superior Court after the county's License, Inspection and Review Board, a citizen panel, ruled against his client, and he wrote stingingly and sarcastically about what the county did. For example:
"Never one to miss an opportunity to deny a party the right to a fair and impartial hearing on the merits, the county outdoes itself once again. . . .
"Just because the LIRB is a citizen board does not mean that its members are given license to ignore the legal standards which govern their decisions. Otherwise the county would be permitted to appoint a group of monkeys to the LIRB and simply allow the [county] attorney to interpret the grunts and groans of the ape members and reach whatever conclusion the attorney wished."
Jurden was moved to respond with an an order that read like an 8-page lecture on civility, which she called essential to preserving the ordered liberty of the justice system and the rule of law.
"[Abbott's brief] contains a diatribe opining the citizens' boards ignore applicable legal standards in decision making and are the functional equivalent of an appointed 'group of monkeys,'" Jurden wrote.
"These statements are disgraceful and have no place in our bar or this court. The statements serve no other purpose than to inflame, insult and offend."
Even as Abbott says he will comply with Jurden's order, this matter may not be over.
In the order's final paragraph, Jurden suggested that the Office of Disciplinary Counsel, which polices lawyers' conduct, may want to take a look at what Abbott wrote in light of a rule prohibiting lawyers from "undignified or discourteous conduct that is degrading to a tribunal."
She wrote, "It is a sad day when the court must intervene in matters of this sort, which may implicate [this rule] of the Delaware Lawyers' Rules of Professional Conduct.
"Having now done so, the court does not anticipate any further incivility, unprofessional written advocacy or other undignified or discourteous conduct that is degrading to the court and casts a pall over our rich tradition of civility and professionalism."
Abbott can take back what he said, but he cannot take back that he said it.