PROFESSIONALISM JACK W. MARR TH

Transcription

1 PROFESSIONALISM JACK W. MARR TH District Judge, 24 Judicial District Victoria County Courthouse 115 N. Bridge Street, Third Floor Victoria, Texas State Bar of Texas TH 39 ANNUAL ADVANCED FAMILY LAW COURSE August 5-8, 2013 San Antonio CHAPTER 2

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3 JACK W. MARR TH DISTRICT JUDGE, 24 JUDICIAL DISTRICT 115 N. Bridge Street, Third Floor Victoria, Texas (361) PROFESSIONAL Admitted to practice in Texas, October 22, BACKGROUND Licensed to practice, U.S. Supreme Court, May 14, Board Certified in Family Law, Texas Board of Legal Specialization, State Bar of Texas. Marr, Meier & Bradicich, Attorneys at Law, Victoria, Texas, September 1, 1974 to present. Elected as Judge of the 24th Judicial District Court effective January1, EDUCATION J. D., Texas Tech University School of Law. Graduated, May Bachelor of Business Administration, Finance Major, Texas Tech University. Graduated, May PROFESSIONAL ASSOCIATIONS Member in good standing, State Bar of Texas. Member, The College of the State Bar of Texas. President, Texas Academy of Family Law Specialists ( ). President Texas Family Law Foundation Member, Family Law Council, State Bar of Texas. Secretary Treasurer Vice-Chair Chair-Elect Chair Immediate Past Chair Ex-Officio - Member - Lifetime Chair - Family Law Section, Legislative Committee Present Member, Texas Family Code, Title 2 Revision Sub-Committee of Legislative Committee of Family Law Council, State Bar of Texas. Member, Texas Family Code, Title 1 Revision Sub-Committee of Legislative Committee of Family Law Council, State Bar of Texas. Member, Alimony Study Committee, Family Law Council, State Bar of Texas. Member, Family Law Practice Manual Committee, Family Law Council, State Bar of Texas. CAREER HIGHLIGHTS Recipient - Texas Academy of Family Law Specialist - Judge Sam Emison Memorial Award for Outstanding Contributions to Family Law Recipient - State Bar of Texas Family Law Section - Dan R. Price Award for Outstanding Contributions to Family Law Faculty member and course director: Various seminars sponsored by the State Bar of Texas, Texas Academy of Family Law Specialists, South Texas College of Law and American Academy of Matrimonial Lawyers.

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5 Professionalism Chapter 2 TABLE OF CONTENTS I. PROFESSIONALS AND PROFESSIONALISM A. Definitions II. APPLICABILITY TO THE PRACTICE OF LAW A. Do we find these characteristics in the practice of law in Texas? Specialized knowledge and high level of skill High Standard of Ethics and Duty to Client III. FUNDAMENTALS OF PROFESSIONALISM IN THE PRACTICE OF LAW IV. THE BOTTOM LINE OF PROFESSIONALISM - THE TEXAS LAWYERS CREED A. Duty to Legal System B. Relationship of Lawyer and Client C. Relationship Between Lawyers D. Relationship Between Lawyer and Judge V. CONCLUSION i

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7 Professionalism Chapter 2 PROFESSIONALISM I. PROFESSIONALS AND PROFESSIONALISM A. Definitions Interestingly, the terms of professional and professionalism are vaguely defined. A profession is defined as a calling requiring specialized knowledge and often long academic preparation. Professional is defined as of, relating to, or characteristic of a profession. Another interesting definition is participating for gain in an activity often engaged in by amateurs. The Miriam-Webster Dictionary, 1978 Professionalism has also been defined interestingly. The New Urban Dictionary has defined professionalism as any business practice in which happiness is sacrificed for success. The Miriam-Webster Dictionary has defined professionalism as the conduct, aims or qualities that characterize or mark a profession or a professional person. Although these definitions are vaguely instructive, the latter definition directs us to the conduct and qualities of the person/activity in order to better define what professional / professionalism really describe. It has been suggested that characteristics of professionalism include: 1. Specialized knowledge in ones field of practice; 2. Excellent manual/practical and literary skills in relation to the profession; 3. High quality work; 4. A high standard of professional ethics, behavior and work activities while carrying out one s profession. A professional owes a higher duty to a client, often a privilege of confidentiality, as well as a duty not to abandon the client just because he or she may not be able to pay or remunerate the professional. Often, the professional is required to put the interest of the client ahead of his own interests. Wikipedia. II. APPLICABILITY TO THE PRACTICE OF LAW A. Do we find these characteristics in the practice of law in Texas? 1. Specialized knowledge and high level of skill a. Licensure to practice law requires specialized post graduate education in jurisprudence and demonstrated knowledge through objective testing. b. To maintain licensure, attorneys must engage in annual, continuing legal education throughout their career. c. Attorneys who specialize in specific fields of practice must demonstrate specialized knowledge and skill through objective testing, must demonstrate subjective, but verifiable, past experience and skill in the area of specialization, and must maintain a higher level of participation in their field of specialized knowledge. d. High standards of competence are required and, an attorney may be disciplined for undertaking representation of a client in a matter in which the attorney knows or should know is beyond the attorney s competence. Texas Disciplinary Rules of Professional Conduct, Rule 101(a). 2. High Standard of Ethics and Duty to Client An attorney must, within the rules of our adversary system, zealously assert the client s position. Preamble to Texas Disciplinary Rules of Professional Conduct. In doing so, however, the lawyer must maintain candor with the courts, must maintain truthfulness with third parties and must not assert claims which the attorney knows or reasonably believes to be baseless. Texas Disciplinary Rules of Professional Conduct. III. FUNDAMENTALS OF PROFESSIONALISM IN THE PRACTICE OF LAW A. A lawyer s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer s business and personal affairs. Preamble, Paragraph 4, Texas Disciplinary Rules of Professional Conduct. B. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. Preamble, Paragraph 5, Texas Disciplinary Rules of Professional Conduct. C. A lawyer should render public interest legal service. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally. 1

8 Professionalism Chapter 2 Preamble, Paragraph 6, Texas Disciplinary Rules of Professional Conduct. D. In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from apparent conflict between a lawyer s responsibilities to the client, to the legal system and to the lawyer s own interests. The Texas Disciplinary Rules of Professional Conduct prescribe terms for resolving such tensions. They do so by stating minium standards of conduct below which no lawyer can fall without being subject to disciplinary action. Preamble, Paragraph 7, Texas Disciplinary Rules of Professional Conduct. IV. T H E B O T T O M L I N E O F PROFESSIONALISM - THE TEXAS LAWYERS CREED I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right. Preamble to Texas Lawyers Creed. A. Duty to Legal System The creed recognizes the duty of a lawyer to the legal system. 1. Above all, the lawyer s honesty must be unquestionable. The lawyer s word must be his/her bond. A deal made must remain inviolate. 2. A lawyer has a duty to assist others in their access to the legal system. 3. A lawyer has an ongoing duty to the judicial system. B. Relationship of Lawyer and Client The creed recognizes the lawyer s duty to the client, but emphasizes the need for appropriate service to the client and the need for the lawyer to instill in the client an understanding of the solemnity of the legal process both in and outside of the courtroom. 1. The creed emphasizes the necessity that the lawyer instill in the client a respect for the legal process. 2. The lawyer must instill in the client a clear understanding that the lawyer s role is both that of counselor to the client and advocate for the client. a. The role of counselor is that of providing the client sound advice of the legal and factual merits of the client s case, unfettered by the client s expressed wishes or empathy for the client. b. The role of advocate is that of a seasoned and truthful presentation of the client s position to the court. 3. The lawyer has a duty to represent the client s interest as efficiently and economically as reasonably possible. a. The lawyer will not pursue claims which are without merit. b. The lawyer will not take any action which has, as its primary goal, delay in the proceeding. 4. The lawyer must make it clear to the client that honesty and courtesy are and will be the guidelines for behavior of the client and the attorney throughout the legal proceeding. a. The client will be required to act courteously toward the court, the opposing attorney, the opposing party and other participants in the proceeding. b. The attorney will act courteously and honestly toward the court, the opposing attorney, the opposing party, and other participants in the proceeding. c. The client must be made aware that there are no exceptions to the requirements of courtesy and honesty. d. The client has no right to alter the requirements of courtesy and honesty. 5. The lawyer will advise the client that the lawyer has the exclusive right to accommodate reasonable requests by the opposing attorney which do not adversely affect the client s lawful objectives. a. The lawyer is the exclusive judge of the a p p r o p r i a t e n e s s o f a r e q u e s t e d accommodation. b. The client has no right to instruct the lawyer to refuse a reasonable request for accommodation. 6. The lawyer should advise the client of alternative methods of dispute resolution. a. Alternative dispute resolution can be very expensive. The attorney should explain these 2

9 Professionalism Chapter 2 costs to the client when discussing the availability of ADR. b. An often overlooked aspect of dispute resolution is negotiation. With the advent of formal ADR, it seems that many attorneys forsake the process of negotiation for the process of mediation. C. Relationship Between Lawyers Lawyers owe each other courtesy, candor, cooperation, and scrupulous observance of all agreements. Engaging in retaliation spurred by unprofessional conduct by opposing counsel is not appropriate. 1. Oral and Written Communication a. Courtesy and civility are a must. b. Lawyers should disagree in a civil manner. The lawyer should not engage in obnoxious behavior toward the other lawyer. c. Lawyers should not encourage or knowingly permit their clients to behave in a manner which would be inappropriate for the lawyer. 2. Changes to documents made by a lawyer must be pointed out to the opposing lawyer. 3. Documents will be prepared in strict adherence to the terms of the agreement it embodies. 4. Lawyers will promptly notify opposing counsel of scheduling changes such as hearings, depositions, or meetings. 5. In the absence of actual adverse impact upon the client, the lawyer should agree to reasonable requests for accommodation by opposing counsel with respect to extensions of time and procedural informalities. 6. The lawyer should not serve motions or pleadings in a manner that unfairly limits another party s opportunity to respond. a. Serving a party by mail deposited on a Friday before a holiday weekend, or before opposing party s vacation begins are examples of questionable conduct. 7. Lawyers should attempt to resolve objections and disputes over pleadings and discovery by agreement. The lawyer should refrain from excessive and abusive discovery. a. Common discovery disputes are generated by a failure of the party seeking discovery to analyze what he or she really needs to discover. These requests result in objections, waste time and client funds. b. Discovery requests which are reasonable should not be resisted. c. Pleadings which assert claims for relief which are not merited by the facts or law of the case also draw special exceptions or discovery inquiries which cause an unnecessary expenditure of the client s resources. d. Issues of form or style should not be the subject of disputes between the parties. e. The lawyer should not permit the client to evade discovery. 8. In the absence of good cause, the lawyer should not disparage the conduct or ethics of the opposing lawyer, parties, or witnesses. To do so brings the profession into disrepute. The lawyer should not allow his behavior to be influenced by the acrimony between clients. 9. A lawyer should not take advantage, by causing any default or dismissal to be rendered, when he or she knows the identity of opposing counsel, without first inquiring about that counsel s intention to proceed. a. Common examples of inappropriate attorney behavior are: i. Taking a default judgment on answer date even though the attorney has spoken to counsel who expressed an intent to answer on behalf of the defaulting party; and ii. Proceeding on a motion in the absence of an attorney who is late for the scheduled hearing. 10. Orders should be drafted promptly. The order should be submitted to opposing counsel for approval as to form or copies of the proposed order should be submitted to opposing counsel prior to or contemporaneously with submission to the court. The attorney should promptly approve orders (as to form) which accurately reflect the substance of the court s ruling. 11. The lawyer should not attempt to gain unfair advantage by sending the court, or its staff, copies of correspondence. 3

10 Professionalism Chapter 2 a. Do not send copies of settlement offers to the court. b. Do not copy the court with argumentative letters to opposing counsel. 12. The lawyer should not arbitrarily schedule depositions or hearings without a good faith effort to schedule the deposition or hearing by agreement with opposing counsel. 13. The lawyer should stipulate undisputed facts. 14. The lawyer should not seek to sanction or disqualify the opposing attorney unless it is necessary to protect the client s lawful objectives or is justified by the circumstances. D. Relationship Between Lawyer and Judge 1. Lawyer and Judge owe each other respect, diligence, candor, punctuality and protection against unjust and improper criticism and attack. a. Repetitive questions, multiple witnesses called to testify about the same event, failure to have witnesses present when they are needed and rambling arguments to the court are examples of inefficient use of the court s time. b. Efforts to resolve disputed issues prior to trial date will reduce the number of cases on the court s docket or will narrow the number of issues to be resolved by the court, thereby saving time. V. CONCLUSION Each lawyer s own conscience is the touchstone against which to test the extent to which his actions may rise above the disciplinary standards prescribed by these rules...so long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise. Preamble, Paragraph 9, Texas Disciplinary Rules of Professional Conduct. a. An attorney who is rude to a judge or disparages a judge to his client or others undermines the public respect for the legal system. b. A judge s rude or disparaging behavior toward lawyers undermines the public s respect for the legal system. c. Only through a display of mutual respect and candor can lawyers and judges fulfill their obligations to promote respect and confidence in the legal system. 2. A lawyer should by word and demeanor demonstrate respect for the court and the law. 3. A lawyer should treat court personnel with courtesy and respect. 4. A lawyer s punctuality is a demonstration of respect for the court. 5. A lawyer should not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities. 6. A lawyer should demonstrate respect for rulings of the court. 7. A lawyer should plan presentation of the case in a manner that does not waste the court s time or the time of the court s staff. 4