Working With The Difficult Lawyer

Transcription

1 6805 Morrison Boulevard, Suite 200 Charlotte, NC Telephone: Working With The Difficult Lawyer Protecting Yourself and The Justice System. Charleston, SC Charlotte, NC Columbia, SC Greenville, SC Who Is The Difficult Lawyer No one is perfect but some are more imperfect than others. Defense counsel and Plaintiffs counsel. Won t return calls and won t consent to anything. Argumentative and disruptive at depositions. 2 Who Is The Difficult Lawyer 3 1

2 Who Is The Difficult Lawyer Argumentative and abusive on the telephone. Underhanded and duplicitous when in the courtroom. 4 Know your Role. You are part of a system that s goal is the proper administration of justice. You are an advocate but you are an advocate within the parameters of a system in which the goal is justice. Too often we view opposing counsel as someone working against instead of working with us on a case. Opposing attorneys are co-workers whose goal as officers of the court is to determine the facts and represent your clients. Understand your role. 5 Know the Rules and Be Reasonable. NC Rules of Professional Responsibility Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Comment [1] A lawyer is not bound, however, to press for every advantage that might be realized for a client. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. 6 2

3 NC Rules of Professional Responsibility Rule 3.5 Impartiality and Decorum of the Tribunal (a) A lawyer shall not: (4) engage in conduct intended to disrupt a tribunal, including: (A) failing to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving opposing counsel timely notice of the intent not to comply; (B) engaging in undignified or discourteous conduct that is degrading to a tribunal; or (C) intentionally or habitually violating any established rule of procedure or evidence; or 7 Comment [10] As professionals, lawyers are expected to avoid disruptive, undignified, discourteous, and abusive behavior. Therefore, the prohibition against conduct intended to disrupt a tribunal applies to conduct that does not serve a legitimate goal of advocacy or a requirement of a procedural rule and includes angry outbursts, insults, slurs, personal attacks, and unfounded personal accusations as well as to threats, bullying, and other attempts to intimidate or humiliate judges, opposing counsel, litigants, witnesses, or court personnel. Zealous advocacy does not rely upon such tactics and is never a justification for such conduct. Conduct of this type breeds disrespect for the courts and for the legal profession. Dignity, decorum, and respect are essential ingredients in the proper conduct of a courtroom, and therefore in the proper administration of justice. Atty. Grievance Comm n v. Alison, 565 A.2d 60, 666 (Md. 1989). Conduct [11] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition or mediation. 8 Managing the Difficult Lawyer Rule 3.4 Fairness to Opposing Party and Counsel A lawyer shall not: (c) knowingly disobey or advise a client or any other person to disobey an obligation under the rules of a tribunal, except a lawyer acting in good faith may take appropriate steps to test the validity of such an obligation; (d) in pretrial procedure, (1) make a frivolous discovery request, (2) fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party, or (3) fail to disclose evidence or information that the lawyer knew, or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, ask an irrelevant question that is intended to degrade a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; 9 3

4 Comment [4] Rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law. Paragraph (c) permits a lawyer to take steps in good faith and within the framework of the law to test the validity of rules; however, the lawyer is not justified in consciously violating such rules and the lawyer should be diligent in the effort to guard against the unintentional violation of them. Comment [6] To bring about just and informed decisions, evidentiary and procedural rules have been established by tribunals to permit the inclusion of relevant evidence and argument and the exclusion of all other considerations. The expression by a lawyer of a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, and as to the guilt or innocence of an accused is not a proper subject for argument to the trier of fact and is prohibited by paragraph (e). However, a lawyer may argue, on an analysis of the evidence, for any position or conclusion with respect to any of the foregoing matters. 10 NC Rules of Professional Responsibility Rule 4.4 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 violate the legal rights of such a person. Comment [2] Threats, bullying, harassment, insults, slurs, personal attacks, unfounded personal accusations generally serve no substantial purpose other than to embarrass, delay, or burden others and violate this rule. Conduct that serves no substantial purpose other than to intimidate, humiliate, or embarrass lawyers, litigants, witnesses, or other persons with whom a lawyer interacts while representing a client also violates this rule. 11 North Carolina General Rules of Practice for Superior and District Courts Rule12: Counsel are at all times to conduct themselves with dignity and propriety. All personalities between counsel should be avoided. The personal history or peculiarities of counsel on the opposing side should not be alluded to. Colloquies between counsel should be avoided. Adverse witnesses and suitors should be treated with fairness and due consideration. Abusive language or offensive personal references are prohibited. The conduct of the lawyers before the court and with other lawyers should be characterized by candor and fairness. Counsel shall not knowingly misinterpret the contents of a paper, the testimony of a witness, the language or argument of opposite counsel or the language of a decision or other authority; nor shall he offer evidence which he knows to be inadmissible. 12 4

5 Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (d) engage in conduct that is prejudicial to the administration of justice; Comment [5] Threats, bullying, harassment, and other conduct serving no substantial purpose other than to intimidate, humiliate, or embarrass anyone associated with the judicial process including judges, opposing counsel, litigants, witnesses, or court personnel violate the prohibition on conduct prejudicial to the administration of justice. When directed to opposing counsel, such conduct tends to impede opposing counsel s ability to represent his or her client effectively. 13 Case law. Nevertheless, "a trial attorney may not make uncomplimentary comments about opposing counsel, and should 'refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives.' Stave v. Rivera, 350 N.C. 285, 291, 514 S.E.2d 720, 723 (1999)(citing State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d 33, 39 (1994) (quoting State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 346 (1967)). 14 Be Prepared. ---Set the tone. ---Research opposing counsel. ---Do Deposition Preparation for Opposing Counsel. ---If you are the out of state attorney, know the Rules. 15 5

6 Document, Document, Document. --Document agreements and disputes. --Document Conferences. --Telephone Privileges. At the end of the day how we act and the process of our justice system should reflect our values and character. 16 Questions? 6