A heartwarming tale for the Rosh Hashanah holiday…

In the course of arranging for an on-site inspection related to a worker injury lawsuit, Attorney Bailey (counsel for the defendant) wrote a letter to opposing counsel, Attorney Dinhofer, confirming that the on-site would take place on September 14.

Attorney Bailey apparently mis-typed the date, which should have been September 10.

September 14 falls during the Jewish New Year celebration of Rosh Hashanah, which starts at sundown on Sunday, September 13.

(With a last name like “Bailey,” I suspect that defense counsel may not have been Jewish.)

Rather than ask Attorney Bailey whether the date might have been a mistake because the 14th was obviously a religious holiday, Attorney Dinhofer jumped to the conclusion that Attorney Bailey was a despicable, ignominious, cowardly, and morally bankrupt racist. Attorney Dinhofer’s letter is too bad/good not to quote, so here is an excerpt:

[Your] unilateral selection of this well known and most sacred Jewish holy date [is] demonstrative of your ignominious cowardice in the deliberate exercise of any outright discriminatory act as well as a knowingly racist provocation on your part. . . . Shame on you!!! Your resort to such despicable tactics and continued gamesmanship on these grounds bespeaks your moral bankruptcy and lack of individual character. It will not soon be forgotten.”

Attorney Bailey called Attorney Dinhofer after receiving this letter, said that the September 14 date was a mistake, and apologized. Reportedly, Attorney Dinhofer accepted the apology, and they made up.

Sort of.

Except then Attorney Bailey sent the letter to the judge, and asked that sanctions be imposed on Attorney Dinhofer for sending the letter. “. . . I am concerned about where this attorney’s communications will go in the future, if his fallacious accusation of me being racist and discriminatory is countenanced,” Attorney Bailey told the judge.

This prompted a response from Attorney Dinhofer to the judge, who essentially said that the case had been contentious and that “these kinds of events frequently occur between strong-willed attorneys.” Nonetheless, Attorney Dinhofer apologized, sort of:

I have no problem apologizing for my emotionally charged reaction to this personal religious matter that was provoked by [Bailey’s] profound mistake in the original instance.”


The judge decided that he couldn’t sanction Attorney Dinhofer because Dinhofer hadn’t made his remarks in a court filing, but he did say that Attorney Dinhofer’s comments were “clearly unwarranted and inappropriate . . . and entirely unjustified. . . . plaintiff’s counsel should bear in mind that his hyperbolic ad hominem attacks reflect more negatively on him than they do on his adversary.”

Well said, U.S. Magistrate Judge Henry Pitman of New York. And shanah tovah to our Jewish readers. (For our non-Jewish readers, that’s “good year.”)

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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