Professionalism: Law Clerks MATERIALS

Transcription

1 Professionalism: Law Clerks MATERIALS LAW CLERKS The law clerk is an assistant to the judge and has no statutorily defined duties. Rather, the clerk serves at the direction of the judge and performs a broad range of functions. Clerks are usually assigned legal research, drafting, editing, proofreading, and verification of citations. Frequently, clerks also have responsibility for library maintenance, document assembly, service as courtroom crier, and some personal errands for the judge. Clerks often attend conferences in chambers with the attorneys in a case and also engage in conferences and discussions with the judge regarding pending cases. Though a clerk s tasks are generally those described above, a law clerk may be more broadly described as a lawyer employed to assist the judge with as many administrative, clerical, and basic legal tasks as possible, so as to leave the judge more time for judging and critical decision-making. There is no narrow job description for a law clerk; the clerk may be called upon to perform any of the tasks assigned to the judge s office staff in order to aid in administration of the judge s docket. The clerk is a member of the judge s staff. He must work cooperatively with the other staff members as a team to attempt together to carry out the overall philosophy of the court. Although each member of the staff has certain specific duties assigned, the staff must act as a unit and the staff members must be positively helpful to each other. The clerk s general function is to participate in processing effectively and fairly the litigation assigned. Work assignments are determined by the respective Judge of the division. The trial court clerk performs a wider variety of functions than does the appellate court clerk. The difference lies primarily in the trial court process of fact-finding, including discovery and trial, and in the myriad details of the daily processing of litigation, including motion practice, discovery disputes, settlement conferences, pre-trial, trial, and post-trial motions. Trial court clerks have substantially more contact with attorneys and witnesses, and are involved in the many decisions made at every stage of each case. 1 All Court employees are required to abide by the Louisiana Code of Judicial Conduct, Code of Governmental Ethics for Public Officers and Employees 2 and the Ethics Policies of Jefferson Parish. Due to the nature of the Court s work it is vital that Court employees adhere to the Code of Judicial Conduct and Code of Governmental Ethics to avoid both impropriety as well as the appearance of impropriety at all times. In most chambers, law clerks concentrate on legal research and writing. Typically, the 1 Excerpt taken from DiLeo, A., and Rubin, A., Law Clerk Handbook, Federal Judicial Center, September, La. R.S. 42:1101 et. seq. Page 1

2 broad range of duties assigned to a law clerk includes conducting legal research, preparing bench memos, drafting orders and opinions, proofreading the judge's orders and opinions, verifying citations, communicating with counsel regarding case management and procedural requirements, and assisting the judge during courtroom proceedings. Judicial law clerks also are expected to work cooperatively with chambers staff and court personnel. The employing judge must be confident in the law clerk's professionalism in interacting with counsel, litigants and the public. Traditionally, law clerks were hired for a one or two-year term, although no rule specifies the duration of their employment. Today, many judges hire permanent law clerks, who serve at the pleasure of the judge. 3 As any lawyer with a client, the law clerk is expected to render professional service for which he is being paid. The law clerk s client is the court and the judge who hired him. He owes this client the full measure of professionalism he would owe to any client. 4 Definition of Legal Advice Legal advice is generally defined as the assessment and application of principles of law to a particular factual situation. It involves the application of legal principles to facts in a manner that (1) in effect predicts a specific resolution of a legal issue or (2) directs, counsels, urges, or recommends a course of action by a disputant or disputants as a means of resolving a legal issue. Merely providing legal information is not considered legal advice. Legal advice generally involves suggesting or predicting a course of action based upon the evaluation of a person s or entity s particular legal situation. PERTINENT RULES: Section 11. The Code of Professionalism in the Courts PREAMBLE The following standards are designed to encourage us, the judges and lawyers, to meet our obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of professionalism and civility, both of which are hallmarks of a learned profession dedicated to public service. These standards shall not be used as a basis for litigation or sanctions or penalties. Nothing in these standards alters or detracts from existing disciplinary codes or alters the existing standards of conduct against which judicial or lawyer negligence may be determined. 3 See La. Const. art. V, 13; La. Rev. Stat. Ann. 13:353 4 You are a lawyer with a client Excerpts from Instructions to Clerks, Second Circuit Court of Appeal State of Louisiana Page 2

3 However, these standards should be reviewed and followed by all judges of the State of Louisiana. Copies may be made available to clients to reinforce our obligation to maintain and foster these standards. JUDGES' DUTIES TO THE COURT We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We will maintain control of the proceedings, recognizing that judges have both the obligation and authority to insure that all litigation proceedings are conducted in a civil manner. We will not employ hostile, demeaning, or humiliating words in opinions or in written or oral communications with lawyers, parties, or witnesses. We will be punctual in convening all hearings, meetings, and conferences; if delayed, we will notify counsel, if possible. We will be considerate of time schedules of lawyers, parties, and witnesses in scheduling all hearings, meetings and conferences. We will make all reasonable efforts to decide promptly all matters presented to us for decision. We will give the issues in controversy deliberate, impartial, and studied analysis and consideration. While endeavoring to resolve disputes efficiently, we will be considerate of the time constraints and pressures imposed on lawyers by the exigencies of litigation practice. We recognize that a lawyer has a right and a duty to present a cause fully and properly, and that a litigant has a right to a fair and impartial hearing. Within the practical limits of time, we will allow lawyers to present proper arguments and to make a complete and accurate record. We will not impugn the integrity or professionalism of any lawyer on the basis of clients whom or the causes which a lawyer represents. We will do our best to insure that court personnel act civilly toward lawyers, parties, and witnesses. We will not adopt procedures that needlessly increase litigation expense. We will bring to lawyers' attention uncivil conduct which we observe. We will be courteous, respectful, and civil in opinions, ever mindful that a position articulated by another judge is the result of that judge's earnest effort to interpret the law and the facts correctly. We will abstain from disparaging personal remarks or criticisms, or sarcastic or demeaning comments about another judge in all written and oral communications. We will endeavor to work with other judges in an effort to foster a spirit of cooperation in our mutual goal of enhancing the administration of justice. Page 3

4 LAWYERS' DUTIES TO THE COURTS We will speak and write civilly and respectfully in all communications with the court. We will be punctual and prepared for all court appearances so that all hearings, conferences, and trials may commence on time; if delayed, we will notify the court and counsel, if possible. We will be considerate of the time constraints and pressures on the court and court staff inherent in their efforts to administer justice. We will not engage in any conduct that brings disorder or disruption to the courtroom. We will advise our clients and witnesses appearing in court of the proper conduct expected and required there and, to the best of our ability, prevent our clients and witnesses from creating disorder or disruption. We will not knowingly misrepresent, mischaracterize, misquote, or miscite facts or authorities in any oral or written communication to the court. We will not engage in ex parte communication on any pending action. We will attempt to verify the availability of necessary participants and witnesses before dates for hearings or trials are set, or if that is not feasible, immediately after such date has been set, so we can promptly notify the court of any likely problems. We will act and speak civilly to court marshals, clerks, court reporters, secretaries, and law clerks with an awareness that they too, are an integral part of the judicial system. General Administrative Rules, Part G, 11 CANON 3 A Judge Shall Perform the Duties of Office Impartially and Diligently The judicial duties of a judge take precedence over all other activities. Judicial duties include all the duties of office prescribed by law. In the performance of these duties, the following standards apply: A. Adjudicative Responsibilities. (1) A judge shall be faithful to the law and maintain professional competence in it. A judge shall be unswayed by partisan interests, public clamor, or fear of criticism. (2) A judge shall maintain order and decorum in judicial proceedings. (3) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials, and others subject to the judge's direction and control. (4) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, and shall not permit staff, court officials or others subject to the judge's direction and control to do so. A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the abilities of all litigants, including self-represented Page 4

5 litigants, to be fairly heard, provided, however, that in so doing, a judge should not give self-represented litigants an unfair advantage or create an appearance of partiality to the reasonable person. (5) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice against parties, witnesses, counsel or others. (6) Except as permitted by law, a judge shall not permit private or ex parte interviews, arguments or communications designed to influence his or her judicial action in any case, either civil or criminal. A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. Where circumstances require, ex parte communications are authorized for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication. A judge shall not knowingly accept in any case briefs, documents or written communications intended or calculated to influence his or her action unless the contents are promptly made known to all parties. Judges of appellate courts shall also avoid all actions or language which might indicate to counsel, litigants or any member of the public, the particular member of the court to whom a case is allotted or assigned for any purpose. Similar circumspection should be exacted on the part of court officers, clerks and secretaries LSA-R.S. Code of Judicial Conduct. [Emphasis added]. Rule 1.1. Competence (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.... State Bar Articles of Incorporation, Art. 16, Rules of Prof.Conduct, Rule 1.1, LSA-R.S. foll. 37:222 Rule 1.3. Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. State Bar Articles of Incorporation, Art. 16, Rules of Prof.Conduct, Rule 1.3, LSA-R.S. foll. 37:222 Rule 3.3. Candor Toward the Tribunal (a) A lawyer shall not knowingly: Page 5

6 (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 (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 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. State Bar Articles of Incorporation, Art. 16, Rules of Prof.Conduct, Rule 3.3, LSA-R.S. foll. 37:222 Rule 3.5. 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; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribunal. LA ST BAR ART. 16, Rules of Prof. Conduct, Rule 3.5 LSA-R.S. foll. 37:222. Page 6

7 La. Dist. Ct. Rules, Title I, Rule 6.1(b) General Courtroom Conduct Attorneys, as officers of the court, shall help to maintain the dignity of the court. Male attorneys and clerks of court shall wear coats and ties in the courtroom. Female attorneys and clerks of court shall wear a comparable level of attire. La. Dist. Ct. Rules, Title I, Rule 6.2 Attorney Conduct (a) Any attorney who tenders himself or herself before the court and represents that he or she is duly authorized to practice law, but who has been declared ineligible, suspended, or disbarred from practice before the courts of this State, shall be subject to contempt proceedings. (b) No one may represent a party in any proceeding except counsel of record, unless allowed to do so by law. (c) When an attorney is interested in two or more matters fixed for hearing in different sections or divisions of court on the same day, that attorney shall notify the minute clerk of the section or sections from which he or she expects to be temporarily absent as to his or her presence in another court. (d) As a general rule, attorneys desiring to address the court while it is in session shall do so while standing. Unless directed otherwise by the judge, all judgments, orders, decrees, or other documents shall be handed to the clerk, who shall hand them to the judge. (e) Private conversation or conference between attorneys or others in attendance during any court session should not be disruptive to the proceedings. (f) Attorneys shall address all remarks, objections, and comments to the judge, never to opposing counsel. Impromptu argument or discussion between counsel will not be permitted. (g) Except with leave of court obtained, only one attorney for each party shall examine any one witness. (h) Counsel may not approach the witness in the witness chair without first obtaining the court's permission. (i) Before showing an exhibit to a witness, counsel shall first either show opposing counsel the exhibit or provide opposing counsel with a copy of the exhibit. (j) Counsel and parties to any litigation shall not send the court copies of correspondence between them. (k) Attorneys shall abide by the Rules of Professional Conduct and should abide by the Louisiana Code of Professionalism, the latter of which is set forth below: Page 7

8 TIME DELAYS CHART Description Delay Authority Motion or Exception (Non-Domestic) Opposition to Motion or Exception (Non-Domestic) Reply Memo to Exception or Motion Submitted to Court (Non-Domestic) Scheduling Conference (Discovery Cut-Off; Trial Dates) Render Jment on matter taken under advisement Post-trial/hearing briefs or transcript prepared Record left open for filing of testimony by deposition and/or documents Request for findings of fact & reasons for Jment Concurrently furnish memo & serve on all other parties at least 15 calendar days before hearing Concurrently furnish memo & serve on all other parties at least 8 calendar days before hearing Furnished & served before 4:00 p.m. on a day that allows 1 full working day before hearing Request in writing or court may order w/in 30 days after request Rules 9.8 and 9.9(a); MSJ-CCP art. 966 Rule 9.9(b) Rule 9.9(c) Rule 9.14(b); CCP art days from time case submitted for decision R.S. 13:4207 π-max 20 days to file Δ-max 20 days from (a) filing or (b) lapse of time for π's brief (whichever sooner) to file a brief If Δ timely files, π allowed max of 10 days to file rebuttal brief Depositions and/or documents filed w/in 15 days R.S. 13:4207.1(a) R.S. 13:4207.1(a) Not later than 10 days after mailing of notice C.C.P. Art. 1917(A) of signing of Jment Subpoena Filed at least 10 days before date Rule 9.15(a) Interrogatories 35 w/out leave of Court Rule 10.0; CCP art. 1457(B) Jury Cost Deposits (civil) Bond filed or costs paid not more than 180 days before trial Domestic Objections 5 days (exclusive of holidays) from receipt of the recommendation or order Faxes Proposed Jments 10.1 Letter/Mot to Compel Discovery Shall not exceed 15 pages, unless permission granted; atty must contact for permission Circulated at least 5 working days before submission Written notice at least 5 days before conference date Rule 12.0 Rule 35.5 (see, App. 35.5); C.C.P. art. 5059; Local Rule 1.5 Rule 3.3 Rule 9.5(b) Rule 10.1 Page 8

9 Rules of Supreme Court of Louisiana (Uniform Rules) Part G. GENERAL ADMINISTRATIVE RULES Section 6. Time Standards TIME STANDARDS LOUISIANA DISTRICT COURTS A. General Civil. Civil cases should be settled, tried or otherwise concluded within 9 months of the date a motion to set for trial is filed, except for individual cases in which the Court determines exceptional circumstances exist and for which a continuing review should occur. B. Summary Civil. Proceedings using summary hearing procedures should be concluded within 45 days from service of process. C. Domestic Relations. Domestic relations matters should be settled, tried or otherwise concluded within 4 months of the date of case filing, except for individual cases in which the Court determines exceptional circumstances exist and for which a continuing review should occur. La. C.C.P. art. 1551(C) If a party's attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471 (2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees. La. C.C.P. Art A. After a trial by jury, the court shall prepare and sign a judgment in accordance with the verdict of the jury within ten days of the rendition of the verdict, or the court may order counsel for a party in the case to prepare and submit a judgment to the court for signature within ten days of the rendition of the verdict, in accordance with the rules for Louisiana district courts. B. When the parties to a contested matter reach a compromise agreement which is recited in open court and on the record capable of being transcribed, the court may order counsel for a party to prepare and submit a judgment to the court for signature, in accordance with the rules for Louisiana district courts, within twenty days of the recital. Page 9

10 RULE 9.5 CERTIFICATE I certify that I circulated this proposed judgment/order to counsel for all parties and/or to self-represented parties by [insert method of delivery] on [insert date], and that: Empty Checkbox no opposition was received; or Empty Checkbox the following opposition was received: [Insert name of opposing party/attorney and nature of opposition.] I have allowed at least five (5) working days before presentation to the court. Certified this day of, 20. CIVIL MOTIONS TO SET; TRIAL DOCKETS Appendix 9.14 All cases that have been allotted and all proceedings in connection therewith may, at the discretion of the Division Judge, be set for trial upon written motion filed by the counsel seeking such trial. In this instance, the motion to set shall be accompanied by a certificate that all parties have answered or preliminary defaults have been taken against them, including third-party defendants, all depositions and discovery have been completed, all exceptions and preliminary matters have been disposed of, and the matter is ready for a pre-trial conference or to be set for trial. Alternatively, after the completion of a sufficient amount of discovery that allows the lawyers/parties to reasonably anticipate the length of the trial, any party may seek a status conference for the purpose of selecting a trial date appropriately in the future, as well as cut off dates for witness lists, expert reports, and discovery. At this status conference a date for a pre-trial conference to occur shortly before trial may also be selected. The dates selected will be reduced to a scheduling order signed by the parties and the court. Rule 9.16 The court may recognize agreements and stipulations between counsel concerning the conduct, trial, or continuance of a suit only if they are: (1) written and filed in the record; or (2) made in open court and entered on the minutes. Rule 9.18 Oral argument is a privilege, not a right, and is within the court's discretion. Page 10