AMERICAN BAR ASSOCIATION ETHICS AND PROFESSIONAL RESPONSIBILITY COMMITTEE CANDOR TO THE COURT AND CIVILITY RULES: ETHICAL ISSUES OR PROFESSIONALISM

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1 AMERICAN BAR ASSOCIATION ETHICS AND PROFESSIONAL RESPONSIBILITY COMMITTEE CANDOR TO THE COURT AND CIVILITY RULES: ETHICAL ISSUES OR PROFESSIONALISM I. INTRODUCTION Nancy L. Cohen 1 March 23, 2013 The American Bar Association Rules of Professional Conduct ( Model Rules ) and the state rules of professional conduct address the minimum standards lawyers must follow in order to avoid ethical problems. Lack of professionalism may reflect poorly on the image of lawyers, but often such conduct will not rise to an ethical rule violation. Courts are concerned about the lack of civility seen in the practice of law and several jurisdictions have enacted civility rules. Yet, typically, a lawyer will not be disciplined for a lack of professionalism or civility. When the lawyer s behavior crosses the line and involves lack of candor to the trial court, disrupts trial proceedings or disrespects the rights of third persons, then a lawyer will be sanctioned, including perhaps losing her law license by the appropriate disciplining agency. Other negative consequences can also occur. II. ETHICAL ISSUES A. RULE CANDOR TOWARD THE TRIBUNAL (a) A lawyer shall not knowingly: 1. make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 2. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 1 Ms. Cohen is a shareholder with the law firm of MiletichCohen PC in Denver, Colorado. 1

2 3. offer evidence that the lawyer knows to be false. If a lawyer, the lawyer s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging in or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. In the disciplinary case of In The Matter of Philip Edward Kay, State Bar Court Case No LMA, (Aug 2010), Kay was suspended for three years for engaging in ethical misconduct in numerous court cases. Kay was a prominent California employment lawyer who won many verdicts, including a $6.2 million dollar verdict against the law firm of Baker and McKenzie. In its 50 page opinion, the disciplinary judge found Kay violated statutes and rules governing lawyer conduct, by failing to maintain respect for the courts, misleading the court and jury, and failing to obey court orders. Most of the disciplinary violations focused on Kay s behavior during the trial proceedings. In one matter, Kay violated California s version of the rule requiring candor to the tribunal, by filing an affidavit containing false information. The evidence presented during the disciplinary trial showed that Kay was disrespectful to opposing counsel and the courts, repeatedly ignored court orders by asking questions that had been 2

3 prohibited or concerned excluded evidence, made speaking objections and gratuitous commentary in front of the jury, submitted a false statement in an affidavit and accused the judges of bias. Not only did Kay s conduct impact his ability to practice law, his conduct caused hardship for his clients because in one matter a new trial was granted and two appeals were filed. In People v. Trogini, 203 P.3d 643 (Colo. O.P.D.J. 2008), the hearing board found a violation, inter alia, of the Colorado version of Rule 3.3 relating to a global settlement of county and district court criminal cases offered by respondent, a deputy district attorney, to the district court even though the county court specifically told respondent not to transfer the county court case. See also, In re Owens, 806 A.2d 1230 (D.C. 2002) (lawyer disciplined for making false statements to an administrative law judge in an attempt to cover up her violation of the court s sequestration order.) B. RULE IMPARTIALITY AND DECORUM OF THE TRIBUNAL A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; if: (c) communicate with a juror or prospective juror after discharge of the jury (1) the communication is prohibited by law or court order; communicate; or harassment; or (2) the juror has made known to the lawyer a desire not to (3) the communication involves misrepresentation, coercion, duress or 3

4 (d) engage in conduct intended to disrupt a tribunal. Typically, bad behavior by a lawyer during a trial will not result in an ethical violation. Rule 3.5(d) requires proof of the lawyer s intent to disrupt the trial. Since many jurisdictions have a clear and convincing burden of proof standard, disciplinary counsel will be unable to meet this burden. However, when the conduct is egregious, then the lawyer will be disciplined. See People v. Brennan, 249 P3d 887 (Colo. O.P.D.J. 2009), affirmed on appeal without decision (Colo. Aug. 2010), as such an example. Brennan addressed an employment lawyer s extensive trial misconduct that caused the trial court to grant a new trial. The underlying case, Cadorna v. City and County of Denver, 245 F.R.D. 490 (D. Colo. Sept. 27, 2007) (Blackburn, J.), involved an action against the City of Denver for employment discrimination. After a lengthy trial, the jury returned a verdict for Cadorna in excess of $1.2 million. Because of Brennan s conduct during the trial as described below, the court granted the city s motion for new trial on the grounds of attorney misconduct. The court recognized that a lawyer s conduct during trial is normally not grounds for a new trial unless such conduct substantially influences the jury verdict or denies the other party a fair trial. The court noted that trial courts have broad discretion in determining whether a lawyer s conduct is egregious or warrants a new trial. Id. During the Cadorna trial, Brennan was sarcastic and disrespectful to the court, opposing counsel and witnesses, repeatedly ignored court rulings and refused to stop talking when the court addressed him. The court admonished Brennan at least 50 times. The court held him in contempt for refusing to stop talking while the court was addressing him. Brennan continued with the same behavior. In deciding to grant a new trial, the court analyzed Brennan s behavior this way: [I]n nineteen years on the bench, I have seen nothing comparable. Such disrespectful cockalorum, grandstanding, bombast, bullying, and hyperbole as Mr. Brennan exhibited throughout the trial are quite beyond my experience as a jurist, and, I fervently hope, will remain an aberration during the remainder of my time on the bench. 245 F.R.D at 492. This behavior did not stop in the courtroom. 4

5 During the trial while counsel were in the hallway, Brennan called one opposing counsel a f@*#ing weasel, and another opposing counsel who is Hispanic, epithets hijo de puta and pinche carbon. Certainly, this type of behavior would be considered unprofessional in any U.S. jurisdiction. In this case, Mr. Brennan s behavior cost him his law license as well as the legal fees. Eventually the parties settled for less than the verdict amount because Brennan did not receive a fee. Disciplinary charges were brought against Brennan. At the three day disciplinary hearing, Brennan engaged in similar misbehavior to the behavior in which he engaged at the Cadorna trial. He repeatedly ignored the Presiding Disciplinary Judge s admonitions, asked improper questions of the witnesses and pushed the disciplinary prosecutor. Brennan was held in contempt on two different occasions. The hearing board found he violated Colo. RPC 3.5(d), conduct intended to disrupt a tribunal, and Colo. RPC 8.4(d), conduct prejudicial to the administration of justice. Brennan was suspended for a year and one day. Like Kay, Brennan not only lost his law license, but his client saw the jury verdict slip away and was forced to defend a motion for new trial. Unlike Kay s clients, who were forced to go through two appeals, Cardona and Denver settled fairly soon after the motion for a new trial was appealed. Sometimes, lawyers raise the defense that their conduct in criticizing or being disrespectful to judges and the justice system is protected by the 1st Amendment. For example, in Fieger v. Michigan Supreme Court, 553 F.3d 955 (C.A. 2009), the appellate court, based on the Younger doctrine of abstention, reversed the district court s order granting plaintiffs request for declaratory relief. The trial court had found that MRPC 3.5(c) and MRPC 6.5(a) were unconstitutionally vague and overly broad. Michigan s Rule 3.5(c) is unlike Model Rule 3.5(d) because it states that a lawyer shall not, engage in undignified or discourteous conduct toward the tribunal. Michigan Rule 6.5(a) is also unlike the Model Rules. It provides: 5

6 A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person's race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and non-lawyer assistants to provide such courteous and respectful treatment. Courts from other jurisdictions have had no problem disciplining or holding a lawyer in contempt for bad behavior. See, e.g., Fla. Bar v. Martocci, 791 So. 2d 1074(Fla. 2001) (lawyer disciplined for making profane and belittling insults to the other party and her counsel.); United States v. Ortlieb, 274 F.3d 871 (5 th Cir. 2011) (court affirmed criminal contempt conviction of a defense lawyer who used vulgar and inappropriate comments to the prosecutor). C. RULE RESPECT FOR RIGHTS OF THIRD PERSONS (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violates legal rights of such a person. (b) A lawyer who receives a document relating to the representation of the lawyer s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. Rule 4.4(a) is not limited to litigation or courtroom behavior, although many of the reported cases arise from that context. See, e.g., Fla. Bar v. Adams, 641 So. 2d 399, (Fla. 1994) (falsely accusing opposing counsel of suborning perjury); Alexander v. Jesuits of Mo. Province, 175 F.R.D. 556 (D. Kan 1997) (lawyer s sole purpose in scheduling an early morning deposition in another city that was more than 60 miles away was for harassment); People v. Sharpe, 781 P.2d 659 (Colo. 1989) (deputy district attorney said to defendant s attorneys, I don t believe either one of those chili eating bastards. The court noted that many people interpreted the remark as evidence that the attorney was racially prejudiced against Hispanics.). D. RULE 8.4 MISCONDUCT It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice. 6

7 The Kay and Brennan cases demonstrate that a lawyer whose conduct disrupts a trial proceeding can also be conduct prejudicial to the administration of justice. The degree of misconduct may be important in determining whether it rises to the level of an ethical violation. See People v. Rosenfeld, 180 P.3d 448 (Colo. P.D.J. 2007) (hearing board found that Rosenfeld did not violate Colo. RPC 3.5(d) or Colo. RPC 8.4(d) even though the trial court in the underlying case admonished Rosenfeld for improper conduct during closing arguments. Lawyers who engage in disrespectful and over the top behavior at trial take a risk that they will be disciplined for such conduct. They also expose themselves to a potential malpractice claim if the underlying verdict in favor of the client is reversed. III. CIVILITY RULES A number of jurisdictions have adopted some type of civility rule. For example, in 1997, New York adopted Standards of Civility for the New York State Unified Court System ( and in 2009, California adopted Civility Guidelines (See Cal. Attorney Guidelines of Civility & Professionalism 1, part of the Civility Toolbox offered by the State Bar, online at ethics.calbar.ca.gov.). See also, the West Virginia Standards of Professional Conduct, effective January 1, 1997 (adherence to the standards by lawyers and judges is voluntary, and a violation does not give rise to no disciplinary action. The Preamble states that the Court felt that adopting the standards was called for because [s]ociety... seems to be accepting a fundamental loss of common courtesy.., perhaps due to the cynicism inherent in a society that values winning at all costs. ); PA Code of Civility adopted in 2005 and is not grounds for discipline. On the other hand, lawyers in various states can be sanctioned for unprofessional conduct. See, e.g., Arizona Rules of Professional Conduct Rules 41(g) and 3.1 defining unprofessional conduct ( South Carolina Rules for Lawyer Disciplinary Enforcement, Rule 7 make it grounds for discipline to violate the oath that includes a vow of civility, taken to practice law. Likewise, on September 12, 2011, the Florida Supreme Court amended the oath for admission to the Florida bar to include a civility component To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications. A Florida lawyer can be disciplined for violation of this oath. 7

8 IV. CONCLUSION Courts and bar associations certainly seem concerned about the lack of civility and professionalism in the practice of law. For many lawyers, lack of professionalism will not get them disciplined or held in contempt. For some, however, the line gets crossed and serious consequences usually ensue. 8

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