Ready, Fire, Aim: How Not To Threaten Sanctions Against Opposing Counsel

[UPDATE: The lawyer called me and asked to "restart" our relationship, including by removing the more provocative elements, so I did. Water under the bridge.]

Yesterday I received an email which said:

Pursuant to New Jersey Rule of Court 1:4-8, please allow this correspondence to serve as notice that Defendants intend to file a Motion for Sanctions as the claims filed by [my client] against Defendants [his clients] are frivolous and in violation of NJ Rule 1:4-8(a).

More specifically, [my client]’s claims include allegations of Fraud (Count I), Conspiracy (Count II), violations of the New Jersey Wage Payment Law (Count IV), Wrongful Termination (Count V), Defamation (Count VI) and Tortious Interference (Count VII) against [his corporate client], as well as [his individual clients]. There is no basis in law or fact for these claims against said individual Defendants.

Indeed, [my client] has alleged in Paragraph 5 of the Complaint that [his individual clients] "were acting in the course and scope of their duties to [his corporate client]." As you are aware, individuals acting solely within the scope of their employment cannot be individually liable for the aforementioned causes of action. Moreover, officers of a corporation cannot be held liable for a conspiracy with the corporation. Finally, there is no alleged basis for individual conduct giving rise to individual liability in relation to these claims.

[my client]’s filing of the aforementioned Counts, with your firm’s signature affixed thereto, gives rise to a violation Rule 1:4-8. Please be advised that, unless these Counts are withdrawn within twenty-one (21) days hereof, we will file a Motion for sanctions pursuant to Rule 1:4-8(b). Please be guided accordingly. 

It sounds good, doesn’t it?

Here’s what he got back:

Your September 15, 2010 letter threatens sanctions against me if I don’t withdraw the individual claims because "individuals acting solely within the scope of their employment cannot be individually liable for" tortious conduct or statutory violations.

Please explain your basis for such assertion. Just off the top of my head — your email was sent ten minutes ago — I can refer you to Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 303, 788 A.2d 268, 272 (2002)("a corporate officer can be held personally liable for a tort committed by the corporation when he or she is sufficiently involved in the commission of the tort") and Reliance Ins. Co. v. Lott Group, Inc., 370 N.J. Super. 563, 581, 851 A.2d 766, 777 (App. Div. 2004)("claims of statutory violations fall within the scope of the participation theory."). There’s no reason to think [his non-officer client], the employee with supervisory authority, will be treated any differently. See Restatement of the Law, Third, Agency § 7.01 ("An agent is subject to liability to a third party harmed by the agent’s tortious conduct. Unless an applicable statute provides otherwise, an actor remains subject to liability although the actor acts as an agent or an employee, with actual or apparent authority, or within the scope of employment.") 

In light of the above, and the absence of any actual law cited by your letter, I must conclude that you are blowing smoke, and that you did not even research the issue before sending me that letter.

Hit the books and try again. If you actually come up with something, I’m happy to review it. Otherwise, your motion for sanctions is plainly frivolous and worthy itself of sanction, and I will disregard your threat. 

It’s so easy for lawyers to convince themselves of the rightness of their cause, to throw off a letter – some lawyers call them "nastygrams" – to your opponent confidently asserting that they are not only wrong in their contentions, but so wrong that the lawyer is an unethical fool for even raising them, and so will be sanctioned by the court.

Once you get into writing it, you start to feel even better about it, so you linger over the wording, tweaking the language, making sure it comes out just perfect, indisputable in its rightness.

So here’s my advice to all litigators: before you get to that point, where you’re certain of your inevitable victory, ask yourself two questions: Do I have any facts or law to back this up? and Would this convince anyone other than me? That will stop you from sending out a threatening letter that says little and the little it says is wrong.

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