Attorney Professionalism: There's More to it Than Just Making a Lot of Money and Having a Lot of Clients
An attorney is a professional; and being a good and respected attorney means more than just making lots of money and having lots of clients. It means displaying, encouraging, and garnering reciprocal professionalism. In this introduction to legal professionalism, we cover some of the major temptations, quandaries, and slip ups that attorneys can handle properly if they adhere to a high standard of professionalism. We also review a sample state’s creed on professionalism, as well as a recent ethics - related case before ending with a summary of suggested best practices for maintaining the highest standards of professionalism and avoiding the scrutiny of the local bar’s ethics board.
Ken Kula: Good day everyone. Welcome to Attorney Professionalism. There's more to it than just making a lot of money and having a lot of clients, by Quimbee. My name is Ken Kula. This presentation includes a number of course materials, including today's slides complete with detailed presenter notes. You can follow along with those slides or simply sit back and enjoy our introduction to Attorney Professionalism.
When we talk about attorney professionalism, we are really talking just about common sense and decency. My favorite quotes about each come from three individuals, two who you may know, and one who you most probably do not. Either way they're good quotes and they will form the backdrop for this presentation. First, Robert Green Ingersoll, an American lawyer from the late 1800s and known as the great agnostic. He's not the one you probably don't know. He once said, "It is a thousand times better to have common sense without education, than to have education without common sense."
Next, the well known, but often criticized US Supreme court associate justice, William O. Douglas. He said, "Common sense often makes good law." True enough, but much like justice Douglas himself, a little too simplistic. Finally, the individual who most of you will not know is Subramanian Raja Krishnamoorthi, the US representative for Illinois's eighth congressional district. He once said, "When the norm is decency, other virtues can thrive. Integrity, honesty, compassion, kindness, and trust." This course will help you deal with clients, opposing counsel and the courts in a professional manner using common sense to make good law. At the same time, promote integrity, honesty, compassion, kindness, and trust.
All right, let's begin. The introduction to the topic and presentation outline will follow. Today's introduction to Attorney Professionalism will focus on five specific American Bar Association model rules of professional conduct. Rule 1.6, rule 1.9, rule 4.4, rule 5.6 and rule 7.1. We'll also discuss one sample state's attorney's professional oath, the Texas Lawyer's Creed, which is directed to setting minimum standards for attorney civility. We'll discuss a single real world case entitled, In re A.P, found at nine Washington App. 2nd, 1089 from the Washington Court of Appeals handed down in 2019.
But before we get into the actual case, we will begin with a hypothetical. We will return to this hypothetical periodically during the presentation to solidify and extend your understanding of the concepts being discussed. So here is the hypothetical scenario that we will be dealing with today. Paula is a secretary to a major executive Dan, at a national manufacturing company, ACME. She hired attorney Ricky, who just graduated from law school to bring a claim against the company and the executive based on her allegations. Which were vividly set forth in her complaint, that she was repeatedly sexually harassed by Dan, while working at ACME with the company's full knowledge and condoning. After months of painstaking review of discovery, attorney Ricky came across one document, out of the several million that were produced by ACME. A draft nondisclosure agreement, or as we call them NDA, with another woman, Simone. Simone indicated that she had previously threatened a similar lawsuit based on even more egregious conduct by Dan, but the party settled before Simone filed the claim.
Thereafter, attorney Ricky confronted Simone with the subpoena to testify, laid out the facts of Paula's case and told Simone that she had to talk to him, now or later about her previous situation with ACME and Dan. Simone was outraged to learn that Dan was still employed by ACME, stating that the arbitrator to whom the parties went as part of their settlement and nondisclosure agreement, ruled that ACME had to replace Dan within 60 days of his ruling. Attorney Ricky, took these facts to counsel for ACME and Dan and he, Ricky indicated that Simone was ready, willing, and able to be a witness against them. The parties settled quickly out of court for 16 million on the condition that neither plaintiff Paula, attorney Ricky, nor any of their agents or representatives would discuss the allegations in Paula's complaint or the terms of the settlement.
Attorney Ricky, so impressed with such a huge settlement in his very first case, immediately posted the following on his firm website, "Have you been sexually harassed in the workplace? Was the harasser or repeat offender? Did the company know? If so, hire attorney Ricky Recruit who has a track record of getting a minimum settlement award of $16 million for each sexual harassment victim?" In addition, Simone still outraged filed separate action for contempt of court against ACME for not replacing Dan as required by the arbitrator's ruling under the party's settlement and nondisclosure agreement. That is the hypothetical that we will be dealing with today, repeatedly referring back to it.
So the question becomes, do you see that anyone did anything unethical, improper, or most importantly unprofessional under the above hypothetical? To determine that, we need to review certain ABA, American Bar Association model rules of professional conduct. Later, a state's non-binding lawyer creed for civility standards. As indicated we could have taken many state lawyer creeds or oaths, but we will simply be looking at one sample states, Texas. The Texas Lawyer's Creed.
So let's begin with the ABA model rules. First, we need to review ABA model rules, 1.6(a) and 1.9(c), each of which addresses confidential information learned during the representation of a client. You'll be provided the printouts of each of these rules so that you can follow along with them or use them after the presentation. Rule 1.6(a) states, "A lawyer shall not reveal information relating to the representation of a client, unless the client gives informed consent. The disclosure is impliedly authorized in order to carry out the representation or the disclosures permitted by paragraph (b)." In our scenario, paragraph (b) has no applicability and thus will not be discussed further. But it bears emphasizing that rule. 1.6(a) talks about how a lawyer shall not reveal information relating to the representation of a client, unless the client gives informed consent. That is the clause that we will be dealing with in our hypothetical.
Similarly, rule 1.9(c) two states, "A lawyer who has formerly represented a client, in a matter, or who's present or former firm, has formally represented a client in a matter, shall not thereafter reveal information relating to the representation except as these rule rules would permit or require with respect to a client." Again, the emphasis in rule 1.9(c) two, is about a lawyer who has formally represented a client in a matter or who's present or former firm, has formally represented a client in matter, shall not reveal information relating to the representation.
In our hypothetical, attorney Ricky, has either represented Paula or formally represented Paula, depending on the timeline that we're discussing. Since we are talking about an attorney revealing "information relating to the representation of a client." Our hypothetical scenario touches upon that fact when attorney Ricky, posts his settlement victory on his website, obviously because Paula entered into a settlement agreement conditioned on confidentiality, she clearly did not consent to Ricky revealing information about her settlement, including the amount. Which could jeopardize her 16 million since it is clearly information related "to the representation of a client", as the rule prohibits. In fact, revealing the amount either herself or by one of her agents, which would include her attorney obviously, would clearly breach the settlement agreement. Thus, it is a no brainer that attorney Ricky could not use the information protected by the confidential settlement agreement in his marketing if it is sufficiently tied to Paula or her settlement.
Now Ricky will argue however that he did not reveal any identifying facts regarding the settlement. In particular, he did not reveal the plaintiff's name, Paula, the executive's name, Dan, the company's name ACME or any of the specific facts contained in Paula's complaint. As we will recall, Paula's complaint was chalk filled with vivid details and allegations of repeated and horrific sexual harassment at the hands of ACME and Dan. Although that might, and I stress might, avoid the wrath of the local bar's ethic commission, i.e the absence of the details that I've discussed, as we'll see later, it runs afoul of the desired standard of professionalism, to which we want all attorneys to aspire.
As I've indicated, professionalism is more than simply following the ethical rules or not getting in trouble. It is using common sense and imploring decency when representing a client, interacting with opposing counsel or addressing the court. As a recurring theme throughout this presentation, you will see that if an attorney adheres to attorney professionalism, again, common sense and decency, then really that should take care of not violating the ethical rules as put forth by the ABA in the model rules of professional conduct.
So consider that every time we talk about an ABA model rule, ask yourself, if the attorney would've just practiced, attorney professionalism, I.e, common sense and decency, would he have VI violated the rule or would he have avoided or she avoided violating the rule? My opinion is that, if the attorney simply adhered to attorney professionalism, common sense and decency, they would have avoided running a fall of the ABA model rule.
So let's continue. The revealing of the generic settlement information on Ricky's website, may have resulted in a different outcome from the ethics commission, in that it would have violated a rule. However, for assessing it, we need to review ABA model rule 7.1, which addresses communications concerning a lawyer services. Again, we discussed 1.6 and 1.9 regarding revealing confidential information. But since the information was so generic on attorney Ricky's website, he probably arguably didn't run afoul of those rules. But now the question becomes whether even that generic information ran afoul of ABA model rule 7.1.
So ABA model rule 7.1 states, "A lawyer shall not make a false or misleading communication out the lawyer or the lawyer services. A communication is false or misleading if it contains a material misrepresentation of fact, or law or omits a fact necessary to make the statement considered as a whole not materially misleading." That's a lot of words. So let's dissect it a little bit. Moderate rule 7.1 state a lawyer shall not make a false statement. So a false statement would be if he misrepresented a certain amount of a settlement, if he was allowed to disclose it at all, or a misleading communication. That's a little bit more tricky. The rule prohibits faults or misleading communications, both about the lawyer, him or herself or the lawyer services. And then the rule goes on to state what a communication that is faults or misleading is. And that is, it contains a material, misrepresentation of factor law, or omits a fact necessary to make the stand statement considered as a whole not materially misleading.
So with that backdrop, the question becomes, was anything post that on Ricky's website, "false or misleading". Most of attorney Ricky's posting consisted of questions, which cannot be facts by definition. As such are less likely to be considered false or misleading. The questions if you remember were, have you been sexually harassed in the workplace? That cannot be fault or misleading. It's simply a question. Was the harasser a repeat offender? Again, cannot be fault or misleading because simply a question. Did the company know? Again, the question can't be false or misleading. It's simply a question. But the next statement on his website is, "If so, hire attorney Ricky Recruit who has a track record of getting a minimum settlement award of 16 million for each sexual harassment victim." If you look at that sentence, we need to determine if it's false or misleading.
Now going on to that, the question becomes, was anything posted on his website, false or misleading with regard to that statement? Attorney Ricky made the affirmative statement, "Attorney Ricky Recruit has a track record of getting a minimum settlement award of 16 million for each sexual harassment victim." So that is the statement we're focusing on. The statement is technically not false since attorney Ricky's universe of settlement awards consisted of a single settlement of 16 million. But the statement is arguably misleading, since most readers and potential clients would think a "track record" the term used by attorney Ricky and his posting, consisted of more than one case and that a "minimum settlement award" again, as used by Ricky on his website, would suggest that there were more than one award from which the $16 million was the lowest amount.
So the statement attorney Ricky Recruit has a track record of getting a minimum settlement award of 16 million for each sexual harassment victim" could very likely be considered misleading by either leaving out certain facts, which make it materially misleading or including statements in there, that leave a false impression of Ricky Recruit's "track record" and how many settlements he's had, and the minimum of amount of those settlements for each sexual harassment victim.
So let's move on to another rule that we need to review based upon the hypothetical that we have. Next, we need to look at ABA model rule 4.4. Now paragraph B of the rule provides the following, "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent, shall promptly notified the sender." That is the key part that we're talking about. The fact is whether the attorney not only knows, but the key is "reasonably should know that the document was inadvertently sent." So that's going to be the key for what we're talking about in this part of the scenario.
So returning to our hypothetical, the local ethics board or commission will have to determine whether attorney Ricky reasonably should have known that the draft NDA buried among several million documents, was inadvertently sent. If it was, he would've had an obligation to promptly notify ACME, which he did not do. Similarly, the ethics investigator will most likely want to explore attorney Ricky's conversation with Simone, during which he indicated, subpoena in hand that she had to talk to him now or later, in his words about her previous situation with ACME and Dan. The question there revolves around whether model rule 4.4(a) prohibits a lawyer from using methods of obtaining evidence that violate the legal rights of a third person. But we will get to that in a minute.
The next thing that we want to talk about is with regards to the first section, which is the paragraph B of the rule that provides a lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client, and knows or reasonably should know that the document or electronically stored information was inadvertently sent and that he shall promptly notify the sender.
It appears from the facts as we've created them in the hypothetical, that attorney Ricky, should have known that a draft agreement involving a totally different person who did not ever actually bring the claim, would've been something that was inadvertently produced. So the therefore if he should have known that, then he had an obligation to promptly notify ACME that the document was produced, which he did not do. So therefore it is very likely that attorney Ricky, ran afoul of model rule 4.4, paragraph B.
Now the question to be answered is whether attorney Ricky, violated ABA model rule 4.4(a), which prohibits a lawyer from using methods of obtaining evidence that violate the legal rights of a third person. The crucial inquiry will include the following, one, could attorney Ricky use the draft NDA that may have been produced inadvertently. If he couldn't have used the after NDA, then he never would've known who Simone was and could not have confronted her. It's analogous to fruit from the poisonous tree. The second question that we would need to ask is whether attorney Ricky could have used the subpoena to imply that Simone had no choice, but to talk to him.
Now we as attorneys know that subpoenas have various uses and the recipient of a subpoena has various defenses. A subpoena can be objected to a subpoena, can be quashed, a subpoena can be improperly served. So there are a number of defenses that an individual who receives a subpoena can take without actually having to adhere to the subpoena. However, the vast majority of the public, hear the term subpoena and they believe that it is a court order that they have no defense to, no recourse, but to honor it. So the question be comes whether attorney Ricky used that subpoena in a way that inappropriately required Simone, to provide information.
Next we need to ask, did attorney Ricky, obtain evidence, Simone statements, that violated either her rights, ACME's rights or Dan's rights, because that too would be prohibited under the rule.
So when attorney Ricky, went with the subpoena in hand and extracted Simone statements, the question becomes, did it violate her rights? Well, it may very well have, by getting her to say things in violation of the nondisclosure agreement that she had with ACME and Dan. Similarly, the fact that ACME was a party to the NDA and Simone obtained information or Simone provided information that ACME wasn't allowed to or agreed to provide, may have actually violated ACME'S rights. Similarly, Dan, as another party to the NDA had certain obligations, responsibility and rights involved in the execution of the NDA. So the question becomes whether attorney Ricky, obtaining the evidence of Simone's statements about ACME and what they did or did not do about Dan, and what he did or did not do and even Simone's own statements about what she did or did not do. The question becomes whether the use of that subpoena to obtain that evidence violated any of those individual third party's rights. If it did, then attorney Ricky may have been in violation of that model rule.
Again, the answers under the ABA model rules of professional conduct might be more debatable, than would be the answers under simply the Texas Lawyer's Creed or some other state's creeds, oaths, or standards of civility that we will look at later. The question becomes as always, was it common sense? And was it decency to take this subpoena after finding a draft NDA and using it to obtain evidence without fully apprising the third party of her rights? I contend it was not and that attorney Ricky did not live up to his attorney professionalism obligations.
So let's move on to the last ABA model rule that we want to look at in assessing our recurring hypothetical. That is ABA model rule 5.6(b). Model rule 5.6(b) states, "A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy." This is very interesting, because recall that attorney Ricky was more than willing to enter into a settlement agreement for $16 million. Of that $16 million we can assume attorney Ricky, would've gotten probably 40% or $6.4 million. Not a bad haul for first year attorney out of law school. That 6.4 million to attorney Ricky or the 16 million total settlement figure, would come from ACME and Dan, as long as neither he attorney Ricky, his client, Paula, nor any of their agents or representatives, would discuss the allegations in Paula's complaint or the terms of the settlement.
We already discussed attorney Ricky's questionable decision to include the %16 million settlement figure on his website. But he ran afoul of the ethics rules well before he ever posted that figure on any webpage. Various ethics opinions have interpreted broadly what it means for a lawyer to participate in a settlement agreement that restricts his or her right to practice. Opinions have indicated that an attorney cannot agree in a settlement agreement not to represent "future clients in similar matters against the opposing party." That come from the Arizona Ethics Opinion 90-06, back in July, 1990, 30 years ago. That is one of the reasons why defense counsel tried to insert that into a settlement agreement, because if they've already lost to the plaintiff's attorney, they don't want to go up against him or again. Or if they've been extracted a large sum of money, they don't want to go up against him or her again.
Another opinion is held that it's a violation of rule 5.6 for defense counsel to include in a settlement agreement, the prohibition against plaintiff's counsel "making any public announcement, comment, or communications to the media or through lawyer advertising concerning the case, including information that may be contained in a court record."
This was ethics opinion from Ohio, Ohio Ethics Opinion 20183, that came out more recently, June, 2018. Again, this is based upon common sense and decency. Here, you can't prevent an attorney from talking or making public announcements about public information. If it's in the court record, then it most likely is public information.
So those are the rules that attorney Ricky Recruit may have violated under the ABA model rules. Again, we need to look at the model rules, but we also have to look at just attorney professionalism. Which is as we've discussed, simply common sense and decency. As associate justice, William O. Douglas said, common sense makes good law. It does. But you also have to couple it with decency. So as we've discussed, whether anyone violated any particular ABA model rule of professional conduct, is debatable and will be highly contested by all parties involved. Obviously attorney Ricky, isn't going to agree that he violated any of the ABA model rules, and any of the other parties will fight it vociferously whether they violated any of rules. And will fight vociferously that attorney Ricky did violate some of the rules.
But let's use as an example, the Texas Lawyer's Creed in assessing the same hypothetical, and determining whether there was a violation of the Texas Lawyer Creed. This will not be nearly as daunting of a task nor will result in such equivocal results. That is because as Congressman Raja Krishnamoorthi, has explained, "When the norm is decency, other virtues can thrive. Integrity, honesty, compassion, kindness, and trust." And when it comes down to the nitty-gritty attorney professionalism is simply common sense coupled with decency.
So turn to the Texas Lawyer's Creed. The Texas Lawyer's Creed states it is, "A mandate for professionalism." Each attorney who follows it adheres to the and oath, "I am a lawyer. I am entrusted by the people of Texas to preserve and improve our legal system. I must therefore abide by the Texas disciplinary rules of professional conduct, but, and this is a key but. 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."
The creed is then broken into four separate sections and discusses an attorney's professional obligations to our legal system as a whole. More specifically from lawyer to client, lawyer to lawyer and lawyer to judge. The creed states as to "our legal system" every attorney "owes to the administration of justice, personal dignity, integrity, and independence, a lawyer should always adhere to the highest principles of professionalism."
Just looking at that, that state meant from the Texas Lawyer's Creed in and of itself, would prevent any violations of the ABA model rules. Because the attorney professionalism that is discussed in just that sentence of the lawyer's creed with respect to a lawyer's obligation to the legal system, states that every attorney "owes to the administration of justice, personal dignity, which would prevent you from extracting evidence from someone without their knowledge, that they don't have to provide that evidence. Integrity, meaning you wouldn't try to extract information from a person knowing that that person doesn't have to provide the information. And independence, meaning that you are going to do things right, because they're right and you're independent and not going to be caving because of pressures from a third party. It goes on to state, a lawyer should always adhere to the highest principles of professionalism, which we have stated, the two components of attorney professionalism are common sense and decency. If a lawyer is always adhering to the highest principles of common sense and decency, there is hardly a chance that an ethical rule will be violated.
Moving on the Texas Lawyer's Creed goes on to stay in part, that every attorney owes a professional obligation to "treat adverse parties and witness with fairness and due consideration." And that again, just shows that we don't need a hundred ABA model rules of professional conduct. All we need is simply to adhere to common sense and decency. If we did that, we would "treat adverse parties and witnesses with fairness and due consideration."
Similarly, the creed affirms every lawyer "owes to opposing counsel in the conduct of legal transactions in the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings." Again, simply adhering to the attorney professionalism as described in the Texas Lawyer's Creed, would avoid any violation of an ABA ethical rule. Because the lawyer would be when conducting trans actions with the other side, actually being courteous, being candid, being cooperative, and having scrupulously observing all the agreements and mutual understandings between the parties.
Finally, the Texas Lawyer's Creed states that all attorneys will "always be conscious of their duty to the judicial system." Well, as we've seen, if you're going to owe allegiance to the judicial system and promise to adhere to the highest professional standards, then you'll treat all people within the judicial system. Be it client, be it adversary, be it opposing counsel, or be it a third party witness, or the judge, you'll treat them with common sense, decency, respect, and all the other attributes that go along with being a professional. Attorney professionalism will ensure that you don't violate any of the ethical rules.
So the question then becomes whether any of the questionable conduct discussed under the ABA rules, would've been avoided if attorney Ricky or the others would've simply adhered dutifully to the Texas Lawyer's Creed. For example, would attorney Ricky have included the $16 million figure on his website. Maybe more importantly, would he have included it in such a misleading way if he was adhering the highest principles of professionalism? I say, no.
Similarly, would attorney Ricky have accepted without question whether his receipt of a draft nondisclosure agreement covering a similar incident was intended by the other side, if he was adhering to the highest principles of professionalism? Again, I say no. Thereafter, would attorney Ricky have taken the NDA, coupled it with a subpoena and gone to see Simone and indicated her that she had no choice, but to talk to him, if he was adhering to the highest principles of professionalism? Nay. Finally, would the attorneys for ACME and Dan included a provision in the settlement agreement that attempted to prohibit attorney Ricky, a first year lawyer, from freely using public information or subjecting attorney Ricky to ethical repercussions for participating in the execution of such an agreement, if they were adhering to the highest principle professionalism. I think the answer to each of those questions is a resounding no. And those answers come not from an elaborate legal interpretation of the ABA model rules of professional conduct, but from adhering to simply common sense and decency, or as I like to call it attorney professionalism.
So with that, I want to move on to a real world example of a case where attorney professionalism may, or may not have been fully adhered to. The case, the real world example of In re A.P. provides an additional opportunity to learn about attorney professionalism.
So returning to our hypothetical, you will notice that the subject of an arbitration was included, as well as a cause of action for contempt of court, based upon a party's failure to adhere to a ruling from the arbitration. In particular, with regards to the hypothetical, when attorney Ricky confronted Simone, she was outraged to learn that Dan was still employed by ACME, stating that the arbitrator to whom the parties went as part of their settlement and nondisclosure agreement ruled that ACME had to replace Dan within 60 days of his ruling. Thereafter, Simone filed a separate action for contempt of court against ACME for not replacing Dan as required by the arbitrator's ruling under the party's settlement and nondisclosure agreement.
The facts of the case of A.P, are fairly simple. But I want to talk first and finish up the hypothetical. As you'll see from the facts of the actual case of In re A.P. is very likely that the attorney who was advising ACME and Simone, may not have provided them all the correct information with regards to whether an arbitrator's ruling is effective in the absence of actually being accepted by the court. So that is what the case of In re A.P deals with.
So the facts of the case are fairly simple. A.P was a child of Tanya Goodman and David Parsons, who never married or lived together. Nevertheless, Ms. Goodman and Mr. Parsons had a contentious and combative relationship while trying to co-parent A.P. When the child was only one year old, they recognized their parenting situation was untenable. As a result, Mr. Parsons petitioned the court for a parenting plan, the court obliged ordering a parenting plan to regulate the relationship between Ms. Goodman and Mr. Parsons with respect to raising B A.P. The contentious relationship continued, however, and the court modified the original parenting plan to provide for an arbitrator to resolve future disputes that arose under the plan.
Thereafter, the arbitrator made five rulings to resolve various conflicts between Ms. Goodman and Mr. Parsons, involving little eight A.P, including a provision for liberal telephone access for either parent to talk to the now three year old A.P. Although the arbitrator always informed the parties that it was up to them to have his awards confirmed with the court, neither Ms. Goodman nor Mr. Parson did so until 2018. When Mr. Parsons filed a motion with the court to enforce the parenting plan and arbitration awards after, that's key, after Ms. Goodman had already violated the plan and the arbitrator's rulings numerous times.
At the hearing Ms. Goodman was found in contempt and ordered to pay over $4,000 in penalties, costs and attorney's fees. She filed a motion to revise the order, but the superior court denied her motion and found her in contempt for, in part, failing to honor the telephone access provision on nine sub occasions. Ms. Goodman appealed arguing that the orders of contempt were not proper since at the time of her actions, the arbitration rulings had not been confirmed by the court. And thus, she cannot be held in contempt of court, because the court hadn't ordered her to do or not do anything, in particular with regards to what she was found to be in contempt for.
The Washington court of appeals stated, however, "Goodman's argument that a contempt finding requires an underlying court order and an unconfirmed arbitration award, is not a court order is a correct interpretation of the law." From that statement, you would think Ms. Goodman won. The arbitrator, told her to do something. The arbitrator told the parties that if they want this to be adhered to by the court or followed by the court, that needs to be accepted by the court, neither party did that. So Ms. Goodman didn't think that she had to, and when she didn't to be found in contempt, the court seemed inappropriate. The Washington court appeal stated Goodman's argument that a contempt finding requires an underlying court order. An unconfirmed arbitration award is not a court order, is a correct interpretation of law. You would think case was over not so.
Nevertheless, the appellate court held, "the sanctions imposed by the trial court are authorized by another applicable statute." In particular, the court concluded "intentionally violating arbitration rulings can constitute the frustration of the arbitration process and thus be economically sanctionable under separate Washington statue."
Although there's no confirmation of this in the court opinion. I have the sneaky feeling that Ms Goodman's attorneys may have indicated to her that in the absence of the confirmed arbitrator's ruling by the court, Ms. Goodman did not have a legitimate risk of being sanctioned for not following the arbitrator's rulings. Again, this isn't described in the opinion. I don't have any actual facts that substantiate this,. But this seems to me, highly likely that the attorney that was advising Ms. Goodman may have said something along the lines that, "Listen, we know that the arbitrator indicated that you should do this. But Mr. Parson never actually got it confirmed by the court. So I don't think you have to do it. If you don't do it, I don't think you're going to in serious trouble."
Now, again, I don't have the facts from the opinion to say that it happened and whether this is true or not. The important point to drive home here, is that if Ms Goodman's lawyer was fully dedicated to attorney professionalism, he or she would've told Ms. Goodman, that regardless of whether an arbitrator's ruling was confirmed by the court, the right thing to do, the professional thing to do would be to convince your client, to follow the ruling, regardless of the fact that they were not confirmed by the court. This is so because as the Texas Lawyer's Creed prophases, "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."
If that lawyer's creed was followed by the attorneys that were advising Ms. Goodman, do you think that they would've told her that it was okay to go and pick up little A.P a day early when she wasn't entitled to him or her under the parenting plan? No, because common sense says that if the parenting plan you to pick him up on a Friday, then you need to pick him up on a Friday, not a Thursday. If the attorneys that were advising Ms. Goodman were adhering to the highest standards of attorney professionalism, which again is just common sense and decency, would they advised Ms. Goodman that she should not let little A.P talk to Mr. Parsons on the phone, when the arbitrator indicated that liberal access should be granted between the non-custodial parent and A.P. Definitely not, because it violates common decency not to have a child and his, or her or biological father communicate.
This was done nine times, no phone calls, no FaceTiming, Ms. Goodman did not allow it. Again, although I don't have a verifiable facts to support that it was based upon her attorney's advice. Clearly, the attorney was arguing after the fact that Ms. Goodman didn't have an obligation to adhere to the arbitrator's, because they weren't confirmed by the court. A technicality, the arbitrator had indicated that Ms. Goodman had to provide liberal access to A.P and Mr. Parsons. And that liberal access had to be allowed when Mr. Parsons called A.P or A.P wanted to call Mr. Parsons, or the two wanted to FaceTime. So just common sense and decency would say, "The child wants to speak to his father." Let him speak to his father, let her speak to her father.
Okay. Technically the liberal telephone provision was not in the original parenting plan. But come on, it's only decent to let the child talk to her father. When Ms. Goodman indicated that she was going to go and pick up the child a day early, because it was a long weekend. Again, it doesn't take ethical rules for an attorney to say, "Listen, whether the provisions are strictly in the parenting plan, that you cannot pick the child up early. Common decency and common sense indicate that you should not violate a ruling from the arbitrator, regardless of whether it's been actually confirmed by the trial court."
So again, I think that the title of this presentation has been Attorney Professionalism. I don't want you to get bogged down in the laborious review of the ABA model rules of professional conduct. They cover every aspect of attorney conduct. When you're dealing with them, you're dealing with arguments on both sides, whether something is false, whether something is misleading, whether something is material. Whether something is confidential, whether someone gave you consent, whether someone didn't give you consent. All those terms are going to be litigated both separately by both sides when it comes down to whether an attorney violated an ethical rule as enacted by the ABA and its model professional code.
But instead, if you just adhere to attorney professionalism, which is common sense and decency and all the other good virtues that we talked about, you won't have to worry about whether your actions or inactions, violated an ABA ethical rule. So in review and summary, I implore you. Yes, review the ABA model rules that we discussed, know them, post the Texas Lawyer's Creed at your desk. Remember the case of in re A.P. But most importantly, just remember, attorney professionalism is simply common sense and decency. It will go a lot longer way in promoting the professionalism of attorneys and making the public respect attorneys more, than simply adhering to the technicalities of the ABA model rules of professional conduct.
Thank you very much.