Ethics and Civility in the Practice of Law

Transcription

1 Ethics and Civility in the Practice of Law Honorable Duane Benton Keith Cutler Alan Pratzel Sara Rittman, Moderator March 12, 2015 Civility in the Practice Ethics vs. Professionalism vs. Civility Ethics what you have to do, or cannot do Professionalism what you should do Civility how you do it Running for the Elevator. 2 1

2 Challenges to Civility Growth of the profession Total # of active lawyers in ,579* Total # of active lawyers in ,281,432* * Source: ABA Market Research Department The business of law, vs. the profession of law Less personal interaction among lawyers More s fewer one-on-one phone calls More conference calls fewer hearings/meetings More phone CLEs/webinars less networking. 3 Challenges to Civility (cont d) Civil profession in an increasingly uncivil society Clients used to expect professional decorum and demeanor Now, expect gloves off, no holds barred fighting Boxing vs. UFC. 4 2

3 Civility in the Practice Civility is not inconsistent with aggressive advocacy Lawyers can disagree without being disagreeable I have to zealously represent my client! No rule on zealous representation in RPC Zealous or zealously appear in the Preamble to the RPC 3 times: 5 Civility in the Practice (cont d) (2) As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system (8) Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assure that justice is being done (9) These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system. 6 3

4 Civility in the Practice (cont d) Link between civility and ethics/professionalism Civility is not inconsistent with aggressive advocacy Lawyers can disagree without being disagreeable I have to zealously represent my client! No rule on zealous representation in RPC Zealous or zealously appears 3 times in the Preamble Will discuss some strategies later. 7 Do the RPC require civility? Preamble to the RPC provides guidance Guide to basic standards of behavior beyond the marketplace Rational set of rules to foster satisfaction/fulfillment Importance of pro bono services Importance of the legal profession as self-regulating Are we a business or a profession and is there a difference? Fairness to opposing party/counsel (Rule 4-3.4) Impartiality and decorum toward the tribunal (Rule 4-3.5) 8 4

5 Do the RPC require civility? Truthfulness in statements to others (Rule 4-4.1) profession Respect for rights of third persons (Rule 4-4.4) Pro bono services (Rule 4-6.1) Accepting court appointments (Rule 4-6.2) Membership in legal service organizations (Rule 4-6.3) Manifesting by words or conduct, in representing a client, bias or prejudice based upon race, sex, religion, disability, age. [Rule 4-8.4(g)] 9 Do the RPC require civility? Civility in dealings with the judiciary Meritorious claims and contentions (Rule 4-3.1) Candor toward the tribunal (Rule 4-3.3) Statements concerning judicial qualifications or integrity (Rule 4-8.2) 10 5

6 International Materials Corp. v. Sun Corp., Inc., 824 S.W.2d 890 (Mo. banc 1992) The term profession refers to persons following a common calling in the spirit of public service. The lawyer s calling is to give order to society. See, R. Pound, The Lawyer from Antiquity to Modern Times (1953). While economic necessity demands that professionals earn a livelihood, the gaining of a livelihood has always been incidental to the practice of a profession. Id. At In re Elam, 211 S.W.2d 710 (Mo. banc 1948) Attorney s attitude and conduct toward the trial judge were flagrantly disrespectful. In addition, attorney made false charges and personal attacks on opposing counsel. Attorney disbarred. In re Coe, 903 S.W.2d 916 (Mo. banc 1995) Failure to demonstrate impartiality and proper decorum toward the tribunal (Rule 4-3.5). Attorney reprimanded. 12 6

7 In re Caranchini, 956 S.W.2d 910 (Mo. banc 1997) Frivolous claims and contentions (Rule 4-3.1)(attorney filed frivolous recusal motion) Failure to exercise candor toward the tribunal (Rule 4-3.3)(misrepresented to court that she lacked knowledge of a party s change of residence and misrepresented evidence to be offered at trial) Failure to demonstrate fairness to opposing counsel (Rule 4-3.4)(attorney intentionally withheld name of potentially helpful witness from opposing counsel in attempt to surprise counsel at trial) Attorney disbarred. 13 In re Westfall, 808 S.W.2d 829 (Mo. banc 1991) Statements concerning judicial qualifications and integrity (Rule 4-8.2). Attorney s criticized judge s appellate opinion as illogical and a little bit less than honest. Also claimed that judge distorted the statute to arrive at a decision that he personally liked. Attorney reprimanded. In re Mirabile, 975 S.W.2d 936 (Mo. banc 1998) Meritorious claims (Rule 4-3.1) and candor toward the tribunal (Rule 4-3.3). Court found that Informant failed to carry its burden and dismissed case. 14 7

8 In re Madison, 282 S.W.3d 350 (Mo. banc 2009) Attorney disrupted the tribunal, made numerous statements impugning the qualifications and integrity of two judges and made statements in reckless disregard for the truth of the claims. Attorney suspended for violating Rule 4-3.5(d)(impartiality and decorum of the tribunal); Rule 4-8.2(a)(judicial and legal officers); and Rule 4-8.4(d)(conduct prejudicial to the administration of justice). In re Cupples, 952 S.W.2d 226 (Mo. banc 1997) Conduct involving dishonesty [Rule 4-8.4(c)]. Attorney reprimanded. 15 LaFevers v. Clothiaux, 403 S.W.3d 653 (Mo. App. S.D. 2012) During trial, lawyers agreed to tell each other the witnesses to be called. Plaintiff s counsel therefore mentioned defendant s expert throughout trial, specifically asking before resting. Defendant then did not call the expert. Held, abuse of discretion not to allow plaintiff to re-open case. New trial ordered. Great Southern Savings & Loan Ass n v. Wilburn, 887 S.W.2d 581 (Mo. banc 1994) Situation without agreement (answer to petition). 16 8

9 State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. banc 1981) An attorney must accept an appointment to represent an indigent criminal defendant and exert best efforts in the defense. The court should conduct a hearing, if requested by the appointed attorney, and not appoint an attorney if it is an undue hardship (with the defendant held to a high standard of proof). Refusal may warrant disciplinary action. State ex rel. Scott v. Roper, 688 S.W.2d 757 (Mo. banc 1985) Compelled legal service and pro bono legal service are not the same. Courts have no inherent power in order civil representation without compensation. 17 In re Coatney, No (Mo. Oct. 4, 2011) Attorney posted numerous comments on a public internet forum, over a 6-month period, questioning the integrity of a judge, in addition to falsely accusing another judge in open court of denying her client a jury trial and having a history of doing that. Violated Rule 4-8.2(a), making false (or reckless) statements about a judge s integrity. Attorney suspended for one year. 18 9

10 In re Hess, 406 S.W.3d 37 (Mo. banc 2013) Attorney Hess, as a litigant represented by counsel, filed a frivolous lawsuit against former clients. Illinois disciplined him for violating Rules 3.1 (meritorious claims) and 8.4(d) (conduct prejudicial to the administration of justice). The OCDC sought reciprocal discipline against Hess in Missouri under both Rules and 4-8.4(d). 19 In re Hess, 406 S.W.3d 37 (Mo. banc 2013) Rule 4-8.4(d) violated (according to four judges), by knowingly filing claims against former clients that constituted conduct prejudicial to the administration of justice. Rule 4-8.4(d) is not limited to conduct while acting as an advocate. Rule not violated (according to the four judges who dissented and concurred) because Hess was not acting as an advocate. Result: Indefinite suspension, with leave to seek reinstatement after six months

11 Strategies for maintaining a collegial and civil practice Conduct with regard to the client Conduct with regard to opposing parties and their counsel Conduct with regard to the courts Conduct with regard to the public and the profession. 21 Strategies for maintaining a collegial and civil practice (cont d) Do a periodic self-check: Are you returning calls, s promptly? Are you on-time for hearings, conferences? Are you respectful of the court? Are you being cooperative with other counsel? 22 11

12 Strategies for maintaining a collegial and civil practice (cont d) Emulate the good lawyers Pick up the phone Let it pend before you send Set the tone for your clients Keep their expectations reasonable Establish your boundaries/limits Set the tone for your staff The Golden Rule