LOYOLA LAW SCHOOL SKILLS PROGRAM

Transcription

1 LOYOLA LAW SCHOOL SKILLS PROGRAM OCTOBER 18, 2003 Host: VAL P. EXNICIOS, ESQ. Liska, Exnicios & Nungesser 601 Poydras, Suite 2655 New Orleans, La (504)

2 In Cooperation With LSBA, Bench & Bar Section Professionalism & Quality of Life Committee

3 SKILLS PROGRAM 9 a.m.-10 a.m.-professionalism & Ethics In The Practice of Law- Lecture & Powerpoint Presentation (audience participation encouraged & appreciated)--val P. Exnicios, Esq., Chairman, LSBA Bench & Bar Section, LSBA Section Council, & Member of the LSBA President s Professionalism & Quality of Life Committee 10 a.m.- 11 a.m.- Common Ethical Problems of Young Lawyers- Charles Chuck Plattsmeir, Chief Disciplinary Counsel, State of Louisiana, Office of the Disciplinary Counsel 11 a.m.-12 Noon- Ethics and Professionalism in the Practice of Law- The Role of the Judiciary- Judge David Gorbaty, La. 4 th Circuit Court of Appeal, Judge Stephen Plotkin, La. 4 th Circuit Court of Appeal (ret.), Magistrate Judge Joseph Giarrusso, Criminal District Court For The Parish of Orleans, Judge Stephen Beasley, 11 th Judicial District Court for the Parishes of Sabine & DeSoto, Judge Mary Hotard Becnel, 40 th Judicial District Court for the Parish of St. John.

4 Professionalism and Ethics Val Patrick Exnicios, Esq. Chairman Louisiana State Bar Association Bench & Bar Section Liska, Exnicios & Nungesser CBD Office 601 Poydras Street, Ste New Orleans, La (504) (504) fax

5 What is Professionalism? (and how does it differ from Ethics) Golden Rule : do unto others as you would have them do unto you Justice Brennan: Ethics is that which is required and Professionalism is that which is expected Frank Neuner; Professionalism is not comprised of a single trait or attribute, but is a combination of elements ethics and integrity, competence combined with independence, meaningful continuing learning, civility, obligations to the justice system and pro bono service teaching professionalism is a suspect premise post formative years If one didn t work or play well with others in grammar school, it is But bad (unprofessional) acts can have bad (disciplinary) consequences But the Code of Professionalism is voluntary isn t it??? There aren t any sanctions imposed for acting unprofessionally right? There s no Rule of Professional Conduct that mandates that I have to act professionally right?

6 Unprofessionalism: A Violation Of The Rules of Professional Conduct Rule 8.4 of Article XVI Louisiana Rules of Professional Conduct provides that : It is professional misconduct for a lawyer to: c. engage in conduct involving dishonesty, fraud, deceit or misrepresentation ; d. engage in conduct that is prejudicial to the administration of justice What actions constitute dishonesty, deceit and/or misrepresentation under 8.4 (c)??????

7 Potential Dishonest/Deceitful Acts and/or Misrepresentations Under Lies about: 8.4 (c) availability for deposition/trial? amount of settlement authority? discovery responses will be tendered shortly? QUERY : What other dishonest, deceitful and/or dishonest acts might constitute professional misconduct? ( Hint: audience participation requested and appreciated)

8 Rule 8.4 (d) s acts prejudicial to the administration of justice Extremely nebulous concept, subject to subjective interpretation by the ODC, ultimately by the La. Supreme Court. Encompasses any and all acts that contribute to a negative public perception of lawyers (officers of the court) e.g., battery b/w lawyer & private citizen, income tax failure to file, any other unprofessional conduct??? Query: if unprofessional lawyer conduct results in decreased public trust in the judicial system, how can unprofessional conduct be anything but prejudicial to the administration of justice, and thus a clear violation of Rule 8.4 (d)? Query: But with all the serious unethical acts being committed by lawyers in La., what are the odds that unprofessionalism is going to result in disciplinary action?

9 Office of Disciplinary Counsel approximately 17,000 lawyers licensed in La., each paying $ 45 annual assessment to ODC, generating approximately $ 765 K in funding, plus $350,000 assessment paid by LSBA $ 1.1 M annual budget 4 deputy counsel + 1 investigator Complaints filed = approx Total # prosecutions = approximately 20,000 lawyers licensed in La., each paying $ 165 annual assessment to ODC, generating approximately $ 3.15 M $ 3.15 M annual budget 10 deputy counsel + 5 investigators Complaints filed = approx. 3,200 Total prosecutions = 150

10 Rules of Professional Conduct 3.1, 3.4, 3.5, & Meritorious Claims & Contentions- A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so in good faith 3.4-Fairness to Opposing Party & Counsel- A lawyer shall not obstruct access to evidence alter, destroy or conceal documents make a frivolous discovery request or fail to make reasonably diligent effort to comply with discovery requests.

11 Rules 3.5 & 6.1 Rule 3.5- Impartiality and Decorum of the Tribunal- A lawyer shall not engage in conduct intended to disrupt a tribunal. Rule 6.1-Pro Bono Publico Service- A lawyer should render public interest legal service.

12 Louisiana Code of Civil Procedure Article 371 An attorney at law is an officer of the court. He shall conduct himself at all times with decorum, and in a manner consistent with the dignity and authority of the court and the role which he himself should play in the administration of justice. He shall treat the court, its officers, jurors, witnesses, opposing party, and opposing counsel with due respect;

13 LCCP Art 371 cont. he shall not interrupt opposing counsel or otherwise interfere with or impede the orderly dispatch of judicial business by the court; he shall not knowingly make any misrepresentation, For a violation of any provision of this article, the attorney subjects himself to punishment for contempt of court, and such further disciplinary action as is otherwise provided by law.

14 WHY ACT PROFESSIONALLY? Solely to avoid disciplinary action? (negative incentive) Can t be/shouldn t be Quality of life reasons: In the old days : A man s (lawyer s) word was his bond Agreements by handshake with no need for written confirmation professional courtesy both expected and appreciated practice of law was an honorable profession Lawyers were respected as honorable, trustworthy professionals and officers of the court practice of law was actually enjoyable and rewarding

15 Deteriorating Civility Equals Deteriorating Quality of Life 19% of lawyers are dissatisfied with their lives. 24% would not become lawyers again. 46% do not desire to remain in law practice for the remainder of their careers. 8-12% have symptoms of serious psychological or physical ill health. 24% exhibited symptoms of depression at least three times per month during the past year. 36.6% felt depressed or unhappy during the past few weeks. 42.5% felt very lonely or remote from other people during the past few weeks. 11.2% had thoughts of committing suicide at least one or two times per month during the past year. 16% consume at least three to five alcoholic drinks per day. (ABA, 2001)

16 The Law in the 50s, it was a calling; in the 70s, it was a profession; in the 80s, it became a business; and if we don t watch out by 2000, it will be a racket. Celia Johnstone, President Canadian Bar Association August 1992

17 RAMBO The Major Cause of the Decline in Civility and Courtesy at the Bar

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20 Welcome Home Rambo! Refuses to return phone calls Refuses to grant routine extensions of deadlines Refuses to even shake hands in court Engages in vulgarity and name calling, shouting, temper tantrums or even the occasional fisticuffs during depositions

21 Carroll vs. Jaques,926 F.Supp. 282 (E.D.Tx. 1996) 1997 decision of the 5 th Circuit Court of Appeals Egregious conduct on part of attorney Attorney sanctions for totally repugnant conduct Least severe sanction available was $ 7000

22 Sanction of $7, calculated by assessing fines of $500 for each of the four times Jacques referred to Plaintiff s counsel as either an idiot or an ass ; $1,000 for Jacques s suggestion during the deposition that Plaintiff s counsel ought to be punched in the g-damn nose ; $1,000 for each of the three times Jacques called Plaintiff s counsel a slimy son-of-a-bitch ; and $1,000 for Jacques s parting words to Plaintiff s counsel ( f***- you, you son-of-a-bitch).

23 Paramount Communications, Inc. vs. QVC Network, Inc. 637 A.2d 34 (De.1994) Gross language by big name Texas lawyer, e.g., don t Joe me asshole you could gag a maggot off a meat wagon One of the best discussions in any reported case on the general principles of Professionalism and the need for Civility in Discovery.

24 Judge John Duhe`: I listen to lawyers every day who decry the way they are treated by other lawyers and by some judges. You tell me regularly that it is no longer fun to practice law; it is vicious, and unnecessarily contentious; that the search for the truth has become the game of hide the ball

25 Judge Rambo - an opinion by a Federal Judge in Little Rock in a discovery dispute decried Judges refusal to assist in discovery disputes/ - the opinion by Judge Bill Wilson said: judges are wont to decry the lack of civility and cooperation amongst members of the trial bar. The judiciary, however, is not without blame. /- For some reason, too many Judges have no trouble restraining their enthusiasm for resolving discovery disputes (this puts it mildly).

26 The Other Side The other side of the coin is that there is a serious ethical dilemma in pushing litigators to make nice and that it may be contrary to the obligation of zealous advocacy we all have.

27 Be Civil? I m a Litigator! I get annoyed, and sometimes infuriated at the self-anointed civility police Many of the civility committees are just stalking horses for legal wimpery. Every bar group that has a civility committee should also be required to have a zealous client representation committee

28 This school of thought holds that you are a legal wimp if you go out and have a drink with your adversary after a tough day of trial!

29 Shakespeare: do as adversaries do in law-strive mightily, but eat and drink as friends.

30 ABA Studies in the Decline in Professionalism Money The Chase for Money Greed Change in Perception of the Practice of Law from that of a Profession to that of a Business

31 Recent article in the American Board of Trial Advocates publication lists these causes: Growth in number of lawyers Increased Pressure for Marketing Clients Exerting Pressure in Cost Control Increasing Specialization Alternative Delivery of Legal Services Increased Public Funding of Legal Services for the Poor Changes in Lawyer Discipline System

32 A few provisions of the Code of Professional Conduct of the Maritime Law Association of the United States. I will provide the highest level of competency and efficiency in the performance of all legal services.

33 I will be civil and courteous to all colleagues, parties, witnesses and the courts, recognizing that effective representation is undermined by antagonistic behavior

34 I will keep my word in the conduct of my legal practice and treat my colleagues, parties, witnesses and the courts with respect and dignity.

35 I will contribute time and resources to pro bono activities.

36 A few provisions of the Texas Lawyer s Creed. From the preamble: The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients,and demeaning to our profession.

37 The Texas Lawyer s Creed divides its list of obligations into three separate sections-lawyer to Client, Lawyer to Lawyer and Lawyer and Judge.

38 Interesting to note that the Texas Lawyer s Creed requires that all members of the Texas Bar advise their clients of the contents of this Creed when undertaking representation.

39 Reputation Reputation for honor, diligence, professionalism and excellence and the constant day in and day out hard work required to preserve such reputation is what the professionalism movement is all about.

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42 Ultimate goal of Professionalism movement- The day when this phrase will be used in common usage: Ethical & Professional as a Lawyer!

43 Louisiana Code of Professionalism My word is my bond. I will never intentionally mislead the court or other counsel. I will not knowingly make statements of fact or law that are untrue. I will conduct myself with dignity, civility, courtesy and a sense of fair play. I will consult with other counsel whenever scheduling procedures are required and will be cooperative in scheduling discovery, hearings, the testimony of witnesses and in the handling of the entire course of any legal matter. I will not engage in personal attacks on other counsel

44 I will not file or oppose pleadings, conduct discovery or utilize any course of conduct for the purpose of undue delay or harassment I will allow counsel fair opportunity to respond, and will grant reasonable requests for extensions of time. I will cooperate with counsel and the court to reduce the cost of litigation and will readily stipulate to all matters not in dispute. I will be punctual in my communications with clients, other counsel and the court, and in honoring scheduled appearances. I will not abuse or misuse the law, its procedures or the participants in the judicial process.

45 Practical Benefits of Professionalism Maintain the privilege of practicing law Improved quality of professional life Improved public perception of lawyers and the judicial system and its easy to do just follow the Golden Rule :