Lawyer in Zoom settlement conference gets 'muted' by opposing counsel

Kris Olson, BridgeTower Media Newswires

While criminal defendants are admonished about their right to remain silent, Melissa S. Dragon says she was extended no such courtesy in a recent Zoom settlement conference.

Instead, the Woburn family law attorney says opposing counsel, Salem’s John G. DiPiano, muted her as both of their clients looked on.

The story begins back in November, when Dragon and DiPiano sat down for a session before an experienced family law conciliator. Sure enough, after two and a half hours, the parties in the complex divorce case had struck a deal — or so Dragon thought.

Dragon’s client had rearranged his professional life so that he could have 50-50 shared custody of his three children, which the guardian ad litem involved in the case agreed was a good idea, according to Dragon.

The change, involving the father having the children just one extra day a week, would mean he would no longer have to pay thousands of dollars a month in child support to his ex-wife, according to Dragon. Both parents are well-compensated professionals.

Dragon left the conciliation believing that the parties had agreed to maintain the status quo through the holidays and then start equally shared custody in the new year.

At the time, Dragon was battling COVID-19. But knowing time was of the essence — and having found that pinning DiPiano and his client down had been “like nailing Jell-O to the wall” — Dragon says she spent the next 48 hours drafting a “soup to nuts” conciliation agreement.

But DiPiano then sat on the deal for a month, Dragon says. In January, he sent along a counterproposal containing terms that had been rejected previously and confirmed as unworkable at the conciliation session, according to Dragon.

While DiPiano was saying that his client needed to “ease into” the new child custody arrangement, in Dragon’s mind that had been the whole point of waiting until the new year to bring the arrangement to fruition.

By unilaterally erasing the progress that had been achieved in conciliation, Dragon says she believed DiPiano was abusing the process and the time the conciliator had donated.

Dragon thus resisted a return trip to conciliation but grudgingly agreed to the Zoom settlement conference.

Dragon says she had thought she had seen — and withstood — it all in her 20-plus-year legal career. Once, she had a lawyer who stood nearly 7 feet tall stick a finger an inch from her nose in open court.

“I’m called ‘bitch’ more than my given name,” she says.

But what happened in the Zoom conference set a new low in terms of opposing counsel thoroughly frustrating her ability to advocate for her client, she says.

In the moments before the muting, Dragon acknowledges that her voice may have been raised. But she says she refrained from profanity or personal attacks.

Instead, she says she focused on opposing counsel’s apparent plans to blow up the deal that had been reached in conciliation, which she reminded DiPiano would be memorialized in the conciliator’s notes.

“I said, ‘Why should I negotiate when you’ve already shown me it’s a waste of time and money, and anything I agree to, you’re going to sandbag?’” Dragon recounts.

Dragon suddenly became aware that, while she was still speaking, no one could hear what she was saying.

“I’ve muted you because you’re being abusive,” she says DiPiano announced.

He then proceeded to offer his argument unimpeded, she says.

“He was the only one who could control the mute button, and he knew it,” Dragon says.

Rather than remain in her Zoom isolation booth interminably, Dragon logged off.

According to Dragon, after her departure, DiPiano continued to negotiate with her client outside her presence for about 90 minutes as her paralegal, who is not an attorney, remained on the call.

DiPiano calls Dragon’s version of the events “inaccurate” but declines to elaborate, beyond saying it would be “unprofessional” and a potential violation of Massachusetts Rules of Professional Conduct 1.6(a), 4.4(a) and 7.1 to comment on an ongoing, confidential settlement negotiation.

DiPiano, a conciliator himself, adds that conciliations are non-binding and designed to discuss the general parameters of an agreement in complex cases.

“The parties and their attorneys then break from conciliation and independently from conciliation draft a mutually acceptable separation agreement,” he writes in an emailed statement.

Only after the parties sign the separation agreement that settles all matters in the underlying case is there an “agreement,” he adds.

Dragon says she cannot help but conclude that DiPiano’s strategy is a deliberate attempt to leverage the backlog in the Probate & Family Court to keep her client paying child support. The parties will not be back before the judge in the case until April, and are probably looking at a trial date in early 2022, she says.

Dragon says she has no plans to report DiPiano to the Board of Bar Overseers but feels he may have flirted with a violation of the Rules of Professional Responsibility.

Boston attorney Erin K. Higgins, whose practice is focused on professional responsibility, calls DiPiano’s alleged conduct “rude and unprofessional, but not unethical.”

She notes that one lawyer is not required to “hear out” the other in a settlement conference.

“Lawyer A is always free to say ‘we are leaving,’ even if that may not be the best outcome for the lawyer’s client,” Higgins says.

Had it been a court-ordered or court-affiliated mediation, however, such conduct might end up being reported back to the assigning judge as a failure to participate in good faith in an ADR proceeding, she adds.

However, Higgins also notes that the Supreme Judicial Court’s Standing Advisory Committee on the Rules of Professional Conduct recently published for comment proposed amendments to Rules 3.4 and 4.4, designed in part to address the continuing problem of incivility among lawyers.

“If these changes are adopted, attorneys who routinely engage in rude and unprofessional behavior may more frequently find themselves on the wrong side of bar complaints,” Higgins suggests.