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Civil War: How Attorneys Can Communicate with Courtesy, Decency, and Respect and Avoid Becoming Just Another Lawyer Joke

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Civil War: How Attorneys Can Communicate with Courtesy, Decency, and Respect and Avoid Becoming Just Another Lawyer Joke

In this course, we will discuss the importance of maintaining civility in communications with clients, opposing counsel and others and recommend best practices for doing so by exploring scenarios that an attorney might face in practice.

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Lata Nott: Welcome to Civil War: How Attorneys Can Communicate with Courtesy, Decency, and Respect and Avoid Becoming Just Another Lawyer Joke, a CLE presentation by Quimbee. My name is Lata Nott, and 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 you can simply sit back and enjoy this overview of best practices for maintaining civility in your communications with your clients, opposing counsel and others.
    In the legal thriller, The Rainmaker, Rudy Baylor, played by Matt Damon, points out that everyone loves lawyer jokes. Even lawyers are pretty fond of them. How do you know when lawyer is lying? His lips are moving. What do you call a smiling courteous person at a bar association convention? The caterer. What's the difference between a good lawyer and a bad lawyer? A bad lawyer might let a case drag on for several years. A good lawyer knows how to make it last even longer. What's the difference between a jellyfish and a lawyer? One's a spineless, poisonous blob, the other is a form of sea life.
   We lawyers sometimes consider it a badge of honor that we have an entire genre of humor dedicated to us. How many other professions can say that? But the problem is they're not always jokes. The sheer volume of lawyer jokes reflects how society perceives lawyers, as jerks who take advantage of their clients, browbeat their opponents, and use underhanded tactics to win their cases. Lawyers themselves often think that civility and courtesy get in the way of success, but actually nothing could be further from the truth. Maintaining civility and communications with clients, with opposing counsel, with the court and with others is not only part of the rules of profess conduct. It's also in the best interests of your clients and the legal profession as a whole.
    In this presentation, we'll talk about what civil communication is and why it's important. We'll also discuss how the American Bar Association model rules of professional conduct, state bar ethics opinions, and various jurisdictions professionalism creates provide guidance on how attorneys can conduct themselves with civility. And finally, we'll walk through some hypothetical scenarios to explore how attorneys can use civil communication to diffuse highly charged situations in practice. People will probably never stop making lawyer jokes, but by keeping these tactics in mind, you can hopefully avoid becoming the butt of one.
   Before we talk about how we can civilly communicate with clients, attorneys, and others, we need to understand what civility actually means. It generally means treating others with courtesy, dignity, and respect. Contrary to popular belief, it does not necessarily mean agreeing with someone, liking them, refraining from criticizing them, or just treating them politely. The point of civility is that you maintain the same level of respect in your interactions with other people, regardless of whether you disagree with them or personally dislike them. Sometimes showing respect for another person means criticism, when it's warranted. And while impoliteness is almost always uncivil behavior, good manners don't automatically make you civil. For example, politely telling someone that you don't hire female lawyers is not civil behavior.
   So what is civil behavior then? Jane Murden, the executive director of the Illinois Supreme Court on commission on her professionalism has called civility behavioral code of decency or respect that is the hallmark of living with citizens in the same state. Today, we're going to look at the standards of decency that lawyers should maintain in their communications with clients, with opposing counsel and with other parties.
   First, in order to get a sense of what civil communication is, it can be helpful to take a look at some examples of what it isn't. There are plenty of examples out there of lawyers behaving badly. And here are a few that were egregious enough to actually lead to formal discipline for the lawyers involved. Two Florida lawyers were sanctioned by the Florida Supreme court because of the escalating insults in their email exchanges, where they called each other among other things, a retard, and a scum sucking loser.
   A lawyer with a popular radio show was reprimanded by the Michigan State Bar after he lambasted a three judge panel of the Michigan court of appeals on air because they overturned a jury verdict for his client. Among other things, he said, "I declare war on you." He identified the judges by name, and he followed up by calling them three jackass court appeals judges, and comparing them to Adolf Hitler and other Nazis.
   A California lawyer was sanctioned by a federal judge for professional discourtesy and sexism after he responded to his opposing counsel's request to stop interrupting her during deposition by saying, "Don't raise your voice at me. It's not becoming of a woman or an attorney who is acting professionally."
   As you can see from the above examples, incivility can take a variety of different forms. A survey conducted a by the Illinois Commission on Professionalism that asked Illinois attorneys about their experiences and perceptions of incivility found that uncivil behavior fell into three general categories, prejudice, rudeness, and strategic incivility. Prejudice refers to sexist comments, inappropriate comments about someone's age or experience, and racially or culturally insensitive comments. Rudeness is the behavior that isn't directed at a specific group like prejudices, but it's still unpleasant. It encompasses inappropriate interruptions of others, sarcastic or condescending comments, and swearing, verbal abuse or belittling language.
   Strategic inability is a bit different. It refers to tactics that abuse the legal system in order for attorneys to gain an advantage for their clients, deliberate misrepresentation to the facts, refusing reasonable requests, frivolous pleadings, or inflammatory writing and briefs or motions. These all count as strategic incivility.
    In the examples of uncivil communication I just mentioned, the lawyers involved were disciplined for their bad behavior. And it's true that lawyers engaging in uncivil behavior do run the risk of discipline of some kind, whether that be judicial sanctions or landing in front of their state disciplinary bodies on charges of violating the ethical rules. But that's not always the case, especially since in most jurisdictions, civility standards are aspirational rather than mandatory. But even in the absence of straightforward punishment, incivility can have other serious consequences.
   First, a lawyer may lose a case due to incivility. In a close case, civility may tip the scales towards a lawyer with reputation for integrity, which would cause the uncivil lawyer's client to lose the case. And in some cases, a lawyer may also lose a client if uncivil behavior leads to their removal from the case. Second, uncivil behavior can result in higher litigation costs for the client because of needless arguing about discovery, unnecessary motions, and hearings on those motions that could have just been avoided if the parties had acted reasonably. Third, gratuitous fighting about discovery or other resolvable issues leads to a waste of judicial resources since courts actually have to read the briefs and hear the arguments on those needless motions.
    Fourth, instability amongst attorneys increases the stress that lawyers have to deal with. That's particularly troubling given that the legal profession already suffers from the inherent stress created by client expectations and the numerous deadlines present in any case. That's why lawyers tend to have higher than average rates of mental illness, substance abuse, and even suicide. When opposing counsel is civil on the other hand, and attorneys can maintain good working relationships, then lawyers can more easily enjoy and focus on their jobs rather than dealing with screaming, obnoxious or rude attorneys.
   Fifth, attorneys who act in an uncivil manner can harm their reputation, which can harm their livelihood as a lawyer. An attorney may find themselves ostracized from the legal community if their community expects civility and the lawyer fails to treat others with dignity and respect. Everyone knows a lawyer that nobody else wants to work with. You don't want to be that guy. And finally, incivility by attorneys helps perpetuate negative perceptions and about lawyers and the legal system, namely that lawyers are arrogant, rude, and obnoxious jerks. And the client with the most awful lawyer in the case will prevail.
    In this presentation, we'll start by discussing the legal history of civility standards for attorneys. Then we'll look at the current legal standards and guidelines for civil communications with clients, with third parties and with opposing counsel. And after that, we'll talk about best practices for civil communication by going through some hypothetical scenarios involving difficult or contentious conversations.
    The Latin root of the word civility is civilis, which means relating to citizens. In its earliest use, the term referred to being a good citizen and exhibiting good behavior for the good of the community. The early Greeks thought civility held the state together, and they considered it both a private virtue and a public necessity. Without civility, they thought the state could not function. Civility is likewise a cornerstone of a legal profession. As Jane Murden put it, as the guardians of the rule of law that defines the American social and political fabric, lawyers should embody civility in all they do. Not only do lawyers serve as representatives of their clients, they serve as officers of the legal system and public citizens, having special responsibility for the quality of justice.
    To fulfill these overarching and overlapping roles, lawyers must make civility their professional standard and ideal. In other words, lawyers have a special duty to be civil above and beyond what's expected of other citizens. That makes it all the more unfortunate that so much of the time, that duty seems to be at odds with how the legal profession operates. Law professor H. Scott Fingerhut has said that instability can be traced to the adversarial nature of legal practice in the United States. Civil and criminal litigation are both so perversely incentivized in America, and the practice of loss so increasingly stressfully competitive, bordering on cannibalistic, that perhaps civility is the best we can hope for, because the truth is both sides want to win, period, and too often do whatever it takes to do so.
    State bar associations have been trying to address this problem since their inception. Civility was a part of many of the early individual codes of ethics that state bar associations had before the national guidelines emerged. And they were also part of those first national guidelines, the Cannons of Professional Ethics that the American Bar Association adopted in 1908. In 1969, these were republished as the Model Code of Professional Responsibility. And in 1983, these were revised and republished again as the Model Rules of Professional Conduct. And these are periodically revised. 2009 was the last time they were, and they will continue to be revised as the ethical rules of our profession grow and change. Although, each jurisdiction is free to adopt its own rules of professional conduct, most local versions are based at least in part on the model rules.
   And as we'll discuss in a moment, several provisions of the model rules directly apply to an attorney's duty to communicate civilly with his or her clients, with attorneys, with third parties and with the courts. But the model rules also contain language that may have directly led to the rise of uncivil behavior among attorneys, as it lays out a duty for them to be zealous advocates for their clients. In 1988, Robert Sailor wrote about this commitment to zealous advocacy, leading to what he called Rambo litigation tactics, which he defined as follows: A mindset that litigation is a war that describes trial practice in military terms, a conviction that it is invariably in your interest to make life miserable for your opponent, a disdain for common courtesy and civility, assuming that they [inaudible 00:13:10] the true lawyer, a wondrous facility for manipulating facts and engaging in revisionist history, a hair trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact finding, and an urge to put the trial lawyer on center stage rather than the client or his cause.
   That is a picture of chief justice, Warren Berger, former chief justice, Warren Berger, who made it his mission in the 1970s and eighties to call for higher standards of professionalism and state adoption of professionalism creeds. He wrote several articles lamenting the loss of professionalism in the law. In one law review article of his, he directly called out the so-called Rambo lawyer, whose idea of council's function, I'm quoting him here, may have been influenced by the clownish performances seen on television programs.
   And in a speech before the American Law Institute, he said the following: "Whether in private negotiation or public discourse, in the legislative process or the exchanges among leaders, in the debate of parties or the relative simple matter of a trial in the courts, the necessity for civility is imperative. Without civility, no private discussion, no public debate, no legislative process, no political campaign, no trial of any case can serve its purpose or achieve its objective. When men shout and shriek or call names, we witness the end of rational thought process, if not the beginning of blows in combat. Today, more and more vexing problems reach the courts and they call for the highest order of thoughtful exploration and careful study. Yet all too often, overzealous advocates seem to think the zeal and effectiveness of a lawyer depends on how thorough he can disrupt the proceedings or how loud he can shout or how close he can come to insulting all those he encounters."
    So, as you can tell, Berger frequently took lawyers and state bar associations to task, especially state bar associations, because he felt that they failed to set and maintain high standards for lawyers. Over the course of the 1980s and 90s, civility became a hot topic in the legal profession, and various courts and bar associations began to adopt expressed statements of acceptable and unacceptable behavioral norms, recognizing that while the model rules set a minimum standard for lawyers, a gap exists and continues to exist between behavior that is acceptable under the model rules and behavior that's actually civil.
    39 out of 50 states, plus the district of Columbia now have professionalism creeds, several county and city bar associations and the bars of some federal courts also have those creeds. These creeds are statements of norms that aim to encourage dedication to professionalism and civility. And according to law professors, Timothy Terrell and James Wildman, the function of a professionalism creed is to reach beyond the basic and uninspiring values enforced by the model rules and demonstrate that lawyers share or ought to share higher, more ambitious moral aspirations. Professionalism, in other words, seeks to infuse into the bar the important moral information it currently lacks.
   So now we're going to take a look at the current laws and guidelines regarding civil communications and how an attorney can make sense of them and apply to them to his or her own relations with clients, opposing counsel, courts and third parties. So I'd like to introduce you to our audience avatar. His name is Quentin. He's a litigation associate at the law firm of Biggers and Biggers. He is barred in the state of Colorado and practices in Denver. And he has just started his career and wants to make sure he establishes a reputation in the legal community as someone who is both ethical and professional.
    As a Denver based attorney who practices in both state and federal court, he might be subject to several different professionalism creeds. The Denver Bar Association, the Colorado state court system, and the 10th circuit all have different ones, but before he gets too overwhelmed, he should keep in mind that the first set of codes that he should look to are the rules of professional conduct. So as Quentin is a Colorado lawyer, he will want to turn to the Colorado rules of professional conduct. But during this presentation, we will primarily discuss the ABA model rules of professional conduct because in most states the model rules serve as a starting point, the model, if you will, for the state's own rules of professional conduct, and most of the state codes track the model rules fairly closely.
   The main purpose of the rules of professional conduct is to define the precise point when an attorney's behavior requires disciplinary action. So how exactly is compliance with rules enforced? Well, first of all, the rules themselves say that compliance depends primarily upon understanding and voluntary compliance, and secondarily upon reinforcement by peers and public opinion, but they actually have more teeth than that. Bar associations will frequently enforce the rules of professional conduct through disciplinary proceedings. The penalties for violating the rules do vary between different bar associations. They run the gamut from private reprimands to disbarment. And many bar associations actually publish periodic reports of disciplinary actions that they've taken to enforce the rules. And some bar associations will actually include past disciplinary actions on the information webpages that they maintain for their members. So while the specific punishments can vary, a lot of them do depend on public shame.
   If Quentin has a question about how the model rules might apply in a particular situation that he's facing, he should look to see if the Colorado bar has issued any ethics opinions on the subject. Every state has a system of some kind where bar association committees, offices of disciplinary council or other entities issue ethics advisories, or opinions. And for the most part, ethics opinions are issued in response to specific questions from members of the bar about how the model rule should be interpreted.
   Sometimes the bar association's response is issued as informal advice. Other times it's a formal opinion, which means it becomes a standard for compliance with the rules. And even though formal opinions are generally not binding, they may be cited as persuasive authority and disciplinary decisions. So if Quentin is pondering an ethical question that his bar association has already issued guidance on, he'll definitely want to look to that first.
    Next, Quentin can look at any professionalism creeds adopted by his jurisdiction. As I mentioned before, multiple professionalism creeds could apply to a lawyer's practice. In Quentin's case, that could be the Denver Bar Association's creed, the Colorado state court systems creed, or the 10th circuits' creed. They're all slightly different, but professionalism creeds in general do share some common features. A professionalism creed in contrast to the model rules addresses a much wider range of behavior. The whole point of the creed is that it can provide guidance beyond just the minimum of what an attorney can do to stay out of trouble.
   And when it comes to the common characteristics, a professor named David Campbell conducted a comprehensive study in 2017 of over 140 civility codes from state and local bar associations. And he conveniently distilled them down to a few common concepts of civility in the legal world. One was recognizing the importance of keeping commitments and seeking agreements and accommodation with regard to scheduling and extensions, being respectful and acting in a courteous cordial manner, being prompt, punctual, and prepared, maintaining honesty, personal and personal integrity, communicating with counsel, avoiding actions that are just taken to delay or harass, ensuring proper conduct before the court, acting with dignity and cooperation in pretrial proceedings, acting as a role model to the client and public and as a mentor to young lawyers, and utilizing the court system in an efficient and fair manner.
   And in most jurisdictions professionalism codes are aspirational, meaning that in most cases you're not going to be subject to formal discipline that affects your ability to practice law. There are a couple of exceptions to this. There are jurisdictions like South Carolina and the Northern district of Texas, where professionals from creeds are mandatory and attorneys can be sanctioned for not acting with civility, just as they could be sanctioned for violating the rules of professional conduct. And there are a few states like Michigan and Delaware that have actually incorporated provisions about civility into their rules of professional conduct, which makes them enforceable by state bar associations.
    But even though that's not the case in Quentin's jurisdiction, that doesn't mean that Quentin should ignore the professionalism creeds that his state and bar and circuit have adopted. As I said, the creeds are about providing guidance beyond the bare minimum of what you need to do to avoid disciplinary action. And they cover how to treat opposing counsel, parties, judges, colleagues, and court staff with courtesy, dignity, and respect. They are important, even if they are not enforceable, and they explore what an attorney can do to be the best possible representative for his or her clients, and a good public citizen within the legal system.
   So now let's take a look at the specific provisions of the model rules, as well as other guidance that apply to attorney communications with their clients, third parties, opposing counsel and the courts. We are going to start with the rules that apply to attorney-client communications. But first, here's another lawyer joke for you guys because I feel like it's been a while since I've given you one. What do you get when you cross the godfather with a lawyer? An offer you can't understand. So you might think that most incivility in the legal profession is between lawyers and their opponents, but actually the majority of complaints alleging violations of the model rules involve some type of failure to communicate with their own clients.
   The model rules have several provisions that apply to attorney-client communications. One of them is the rule of professional conduct 1.2(d), a lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent. But a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
   Then we have rule 1.4(a), a lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required by these rules, reasonably consult with the client about the means by which the client's objectives are to be accomplished, keep the client reasonably informed at the status of the matter, promptly comply with reasonable requests for information, and consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the rules of professional conduct. And finally we have rule 1.4(b), a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
    So in some, these provisions establish that attorneys have a duty to keep their clients informed about their cases and provide the explanations that clients need to make good decisions. And they also have a duty to tell their clients that they won't engage in conduct that violates the law or the rules of professional conduct if that's what the client seems to want or expect.
   Now we're going to take a look at the rules that apply to attorney third party communications. Once again, I have a relevant lawyer joke for just this category of communication. What's the difference between a lawyer and a liar? The pronunciation. So while the popular conception may be that lawyers can do whatever it takes to secure victory for their clients, the fact of the matter is, is that lawyers actually have a duty not to lie or unduly burden third persons in the course of representing their clients.
   Rule of professional conduct 4.1 says that in the course of representing a client, a lawyer shall not knowingly make a false statement of material factor law to a third person or fail to disclose material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.
   Rule of professional conduct 4.2 says that in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order.
   And rule of professional conduct 4.4(a) says that in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such person. So essentially, while attorneys are obligated to zealously advocate for their clients, that does not give them the license to lie or unduly burden other people in that quest.
   Now we're going to look at the model rules that apply to communications between attorneys, and this leads us to what may be my personal favorite lawyer joke. Why don't snakes fight attorneys? Professional courtesy. It's a great joke that belies the fact that attorneys often don't show each other professional courtesy. If our friend Quentin wants to buck this trend, he needs to be aware of his obligation to civilly communicate with other lawyers, especially with opposing counsel.
   There are a few provisions in the model rules that actually speak specifically to this obligation. Rule. 1.3, Comment One says that a lawyer must also act with commitment and dedication to the interest of the client and with zeal and advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. So it's nice. There's a comment that directly speaks to that requirement for zealous advocacy on the part of your client that is not supposed to outweigh your duty to respect your fellow attorneys and everyone else involved in the process.
   Rule of professional conduct. 3.4 says that a lawyer shall not unlawfully obstruct another party's access to evidence, falsify evidence, knowingly disobey an obligation under the rules of the tribunal, make a frivolous discovery request, or fail to make reasonably diligent efforts to comply with a legally proper discovery request, or, in trial, allude to any matter that the lawyer does not reasonably believe is relevant.
    Rule of professional contact. 4.4(b) gives some very specific guidance about a specific situation an attorney might encounter in practice, when a lawyer receives a document or electronically stored information that was mistakenly sent or produced by opposing counsel. And the comment to the rule comment actually clarifies that a document is considered to be inadvertently sent when it's accidentally transmitted such as when an email or a letter is misaddressed or a document is accidentally included with information that was intentionally transmitted, but the document itself was not meant to be transmitted with it.
    If a lawyer knows that such a document was sent inadvertently, then the rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps such as returning the document is a matter of law beyond the scope of these rules as is the question of whether the privileged status of the document or electronically stored information has been waived.
   So further guidance on communicating civilly with opposing counsel can be found in a case called Dondi Properties Corporations v. Commerce Saving & Loan Association. This is a federal court opinion from the Northern district of Texas, and it established the standards of litigation conduct for civil actions in that district. You may remember that the Northern district of Texas is one of the few jurisdictions where the professionalism creed is mandatory and not aspirational. So while the standards laid out in this case might not be enforceable in other jurisdictions, they can be seen as best practices for maintaining civility with other attorneys.
   A little background on this case. It came out in 1988 and since then it's been cited more than a thousand times. In Dondi Properties, the defendants filed six motions for sanctions complaining that the plaintiffs failed to answer interrogatories, didn't comply with prior court orders pertaining to discovery, misrepresented facts to the court and improperly withheld documents. The court took a pretty unusual step of convening en banc to rule on these motions and here's how it summarized the problem. With alarming frequency, we find that valuable judicial and attorney time is consumed in resolving unnecessary contention and sharp practices between lawyers. Judges, and magistrates of this court are required to devote substantial attention to refereeing abusive litigation tactics that range from benign incivility to outright obstruction.
   Our system of justice can ill afford to devote scarce resources to supervising matters that do not advance the resolution of the merits of the case. Nor can justice long remain available to deserving litigants if the cost of litigation are fueled unnecessarily to the point of being prohibitive. As judges and former practitioners from varied backgrounds and levels of experience, we judicially know that litigation is conducted today in a manner far different from years past. Whether the increased size of the bar has [inaudible 00:31:48] collegiality or the legal profession has become only a business where experienced lawyers have ceased to teach new lawyers standards to be observed, or because of other factors not readily categorized, we observe patterns of behavior that forebode ill for our system of justice.We now adopt standards designed to end such conduct.
    I know that I am reading a lot of statements where judges take lawyers to task for incivility, but a lot of it is quite inspiring and does drive home how civility isn't just good manners in the courtroom. It's really a core value of the legal system. So here are the conduct standards that the court and Dondi actually established, enforced in the Northern district of Texas, but still very good advice if you practice elsewhere.
    First, a lawyer owes to opposing counsel a duty of courtesy and cooperation, the observance of which is necessary for the efficient administration or system of justice and the respect of the public it serves. Second, a lawyer should treat each other, the opposing party, the court, and members of the court staff with courtesy and civility and conduct themselves in a professional manner at all times. Third, a lawyer should not use any form of discovery or the scheduling of discovery as a means of harassing opposing counsel or counsel's client. Fourth, lawyers will be punctual in communications with others and in honoring scheduled appearances, and will recognize that neglect and tardiness are demeaning to the lawyer and to the judicial system. And finally, if a fellow member of the bar makes a just request for cooperation or seeks scheduling accommodation, a lawyer will not arbitrarily or unreasonably withhold consent.
   So there's also a few rules that apply to attorney communications with the court. And my relation for this topic, what's the difference between a good lawyer and a great lawyer? A good lawyer knows the law, a great lawyer knows the judge. Now the idea that attorneys win cases because of their personal relationships with judges is a common one in popular culture, but it's one that runs counter to the integrity of the justice system, so it's not great. That's actually why attorneys need to walk the line between being courteous with judges without being overly familiar with them.
    Rule of professional conduct 3.5 says that a lawyer shall not seek to influence a judge, juror or other official by means prohibited by law, communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order, communicate with a juror or prospective juror after discharge for the jury if the communication is prohibited by law, the juror has made known to the lawyer desire not to communicate or the communication involves misrepresentation, coercion, duress, or harassment. And also, lawyers shall not engage in conduct intended to disrupt a tribunal.
    Rule 8.2(a) says that a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office. And finally, there's a model rule that serves as a catch all provision that can apply to communications with many different parties. And that is rule of professional conduct 8.4(c). It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
    And you may be wondering where's my lawyer joke for this category? Do I not have one? Well, of course I do. Why are lawyers like nuclear weapons? If one side has one, the other side has to get one. Once launched, they cannot be recalled, and when they land, they screw up everything forever. So just think of the catch all provision as a lawyer's duty not to engage in the kind of conduct that will screw up everything forever. No pressure.
    So the model rules pertaining to civility might seem pretty straightforward, but in practice the issues involving civil communication that most attorneys encounter aren't usually very black and white. So now we're going to go over some hypothetical scenarios, which will maybe not give you the right answer in every single situation you'll encounter, but should illustrate the thought process that an attorney should go through when determining the best response to a difficult situation.
   Once again, we are going to start with attorney client communications, where we are back with our friend Quentin, who is representing a client named Linda in her divorce. He's been corresponding with her via email. Quentin makes it a point to update her about developments after every court appearance, every deposition. So he's pretty shocked when the partner on the matter calls him into her office and says that Linda has issues with his communication style. This is mortifying for Quentin.
   So what did he do wrong? While he thought he was doing his duty and keeping his client informed, this hypothetical emphasizes the importance of proactively establishing the preferences of your client when it comes to communication. Some clients are going to prefer email updates. Others might like a phone call. Others might like a written debriefing. Some might just want quick verbal updates. It might be a generational preference. It could just be a personal preference.
   But regardless, it's best to establish that from the very beginning to avoid this kind of miscommunication, because the key to civil communication isn't just meeting the requirement to keep the client informed. It's establishing how the client wants to be informed. The majority of complaints alleging violations of the model rules involve some type of failure to communicate with clients. So it's particularly important for Quentin to know his client's needs and preferences in this area from the get go.
   So next one, this happy character is Linda. Despite the fact that she looks a little bit peeved in this slide, she and Quentin have worked out their communication issues and they're getting along famously now. She's not mad at him. She just learned that her estranged husband has just moved in with their former nanny, and Linda is furious. She comes into Quentin's office demanding that he sued the nanny for breach of contract, for torturous interference, defamation, just any other cause of action that he can think of. She wants him to list every single scandalous fact about her husband in the complaint, just because she wants it to be out in the public record. She doesn't care if it's dismissed. What should Quentin do?
    Well, while Quentin has promised to be a zealous advocate for Linda, he also has an obligation to communicate her that he can't file frivolous lawsuits on her behalf since that would violate the rules of professional conduct. Rule 3.1 says that a lawyer shall not bring or defend a proceeding unless there is a basis in law and fact for doing so that is not frivolous. 8.4(g) says that it is professional misconduct for a lawyer to present, participate in presenting or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter.
   So while this might be a difficult conversation for Quentin to have with Linda, he should really emphasize that the ideals of the professionalism and civility are not at odds with being the best possible advocate for her. Linda's main goal is to win a favorable settlement in her divorce. Filing unnecessary lawsuits will actually undermine that goal, as judges do not appreciate it when parties waste their time and the court's resources. Linda's ex-husband and nanny could allege that Linda's using the litigation system to harass them, which could lead the court to impose sanctions on Linda or force her to pay her attorney's fees.
    Even if it doesn't come to that, Quentin should stress that filing civil frivolous lawsuits like this will put them on the judge's bad side. And Linda's going to have to pay Quentin additional money to file those lawsuits, prepare for those hearings and appear for them in court. Quentin should also convey to Linda that attorneys who are civil and professional can be more effective, credible and likable to a judge or jury than uncivil lawyers, which can increase a civil lawyer's chances of winning the case.
   So Quentin has talked Linda out of pursuing frivolity against the nanny, but after discussing the matter further, they realized that if her husband was seeing the nanny before their separation, Linda has the grounds to file for divorce on the basis of adultery. Linda suspects that the nanny may have posted pictures of herself and Linda's husband in compromising positions on Facebook. But since the nanny's Facebook account is private, Linda can't confirm this. So Linda wants Quentin to friend the nanny and download all of those pictures. Can Quentin do this?
    Well, rule 4.1 says that in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose material fact when disclosure is necessary to avoid assisting a criminal fraudulent client. So while Quentin can contact the nanny via Facebook, he can't misrepresent himself to her and he can't mislead her. If she asks him who he is, he has to be honest with her.
   Furthermore, since the nanny is presumably not represented by counsel, rule 4.3 applies here. And it states that when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. So even if she doesn't ask who he is, Quentin may be obligated to disclose that he's Linda's lawyer, but if the information were public, meaning Quentin could access it without friending the nanny because her Facebook page is public, then it would be fair game.
   Now follow up to this, can Quentin obtain the photographs by friending Linda's husband? Well, that would actually be just as if not more ethically dicey. Rule 4.2 applies to communication with persons who are represented by counsel, which Linda's husband presumably is because he is also involved in their divorce. And the rule states that in representing a client, a lawyer shall not communicate about the subject of representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. While Quentin could argue that friending someone on Facebook does not amount to communicating with them, a judge could pretty easily rule otherwise.
   Now Quentin has a new case. He's been assigned to an employment discrimination case. His client, Karen, is a pregnant will woman recently dismissed from her job. Karen strongly suspects that she was fired because of her pregnancy, but Karen's former boss says that she was fired because of her performance. The company doesn't have a formal review process and so it's essentially Karen's word against her boss's word.
   Late one night, Quentin receives an email from opposing counsel. Upon opening the email, he realizes that it was sent to him accidentally. It was actually intended for Karen's former boss. The email states, please review ASAP the attached document. It outlines the reasons we could very well lose this case to Karen, as well as our previously discussed settlement strategy. What should Quentin do? So this is a hypothetical that looks at communications between attorneys and specifically what happens when you get what could potentially be a very useful document accidentally.
    Well, the only action required to be taken under the model rules is to notify opposing counsel of what happened. Rule 0.4(b) states that a lawyer who receives a document or electronically stored information relating to representation of the lawyer's client and knows that the document was inadvertently sent should promptly notify the sender. The comment to the rule makes it clear that an email that is sent to the wrong address is considered to be inadvertently sent. But it also says that whether further action is required, whether there's a question of the privileged status being waived, or whether the document needs to be returned, that's something that's beyond the scope of the model rules.
    So Quentin needs to notify opposing counsel, but when it comes to going beyond that, he needs to consider his relationship with opposing counsel, the impact the email will have on the litigation, and the expectations of his client before he decides what further action he should take. This is a scenario that actually occurred in a 2007 California case called Rico V. Mitsubishi Motors Corporation. Although California doesn't follow the model rules, it's ethical rules still contain this provision.
   Just a little background there, because I think it's interesting and it's an important example of how this occurs in practice. The plaintiff in this case was Zerlene Rico. She was suing Mitsubishi after a Mitsubishi vehicle rolled over her and injured her. After the suit was filed, Mitsubishi's attorneys met with two designated defense experts to discuss their litigation strategy and any vulnerabilities there. The notes from the meeting were compiled into a document, which one of the Mitsubishi attorneys kept. Later, at a deposition in the case, someone left a briefcase with these notes in the deposition room while he went to the bathroom, and Rico's attorney somehow obtained them. And he claimed that the court reporter gave him the notes, thinking that they were an exhibit. But Rico's attorney later said that he knew within a minute or two that the document was not meant to be produced as an exhibit.
   But despite this knowledge, he made copies of it. He discussed it with his co-counsel and experts, and he used it in a later deposition. Mitsubishi moved to disqualify him as Rico's counsel, and the trial court held a hearing and they framed the issue like this: Whether reasonably competent counsel, knowing the circumstances of the litigation, would've concluded the materials were privileged, how much review was reasonably necessary to draw that conclusion, and when counsel's examination should have ended. So, as you can imagine, the answers to these questions are very dependent on the facts and particular circumstances.
   In this case, the notes that Rico's attorney found weren't just a transcript of the defense strategy session or of the expert statements. They were a summary of the points from the strategy session and they added the Mitsubishi attorney's thoughts and comments. So they didn't just reflect the strategy of the case, but also the attorney's opinions about the important issues in the case. And the court determined that Rico's lawyer had received the notes inadvertently and had acted unethically in examining them and using them. And so it granted Mitsubishi's motion to disqualify him.
   So obviously Rico's lawyer shouldn't have done what he did. He was in violation of California's ethical rules. But if you think about it for a moment, even if he didn't know the rules forbade this conduct, he probably could have avoided this messy disqualification just by following his own conscience. Even where there isn't a specific civility guideline that is in the professional conduct rules or in an ethics opinion or in case law, it's a good idea to follow these professional creeds in order to avoid coming close to an ethical line, angering a judge, or generally doing a disservice to yourself, your colleague, the judicial system in general.
   So Quentin arrives in court for a routine motion. During Quentin's argument, he hears opposing counsel mutter a condescending remark about Quentin that he can hear clearly, but the judge cannot. Quentin continues, but opposing counsel does it again. So what should Quentin do? And I'm sorry that that moved forward too fast. The model rules do not provide a clear cut answer here. While Quentin may be tempted to tell the opposing counsel directly to stop talking during his rebuttal, it would probably be more appropriate for him to continue with his rebuttal and address the comments after the proceeding and outside of the courtroom. Or he can ask the judge to instruct opposing counsel to stop talking during your rebuttal, but it's better for this to come as a request to the bench rather than as a direct reply to opposing counsel. Yeah. So address the comments outside of the courtroom.
    In our next hypothetical, Quentin is corresponding by email with opposing counsel regarding potential settlement of a case. And the tone was quite casual at first because he and the other lawyer had become friendly over the course of the case. But as settlement negotiations break down, the email correspondence becomes very heated and rude. So what should Quentin do here? This is another hypothetical the based on a real case. Actually, it's based on one of the instability examples I mentioned at the very beginning of this presentation, where two Florida lawyers, Kurt Mitchell and Nicholas Mooney were centered by the Florida state court for the escalating insults in their email exchanges.
   They called each other some very nasty names over the course of what must have felt like an incredibly long litigation. I probably don't need to repeat these right here. They were all pretty bad, but at the end of the matter, which included more than 200 email exchanges of increasing hostility, featured Mooney making fun of Mitchell's wife, and Mitchell making fun of Mooney's child, not even touching on other disputes that arose during depositions or in their motions to court. This ended up before the Florida Supreme court. As I said, professionalism creeds are usually aspirational and not mandatory, but Florida is one of a handful of jurisdictions that has actually incorporated civility standards into its rules of professional conduct. And that allows the court penalized attorneys for violating them.
   The Supreme court of Florida took a look at these emails and recognized that the comments in them were meant to disparage, humiliate and discriminate against one another, which violates Florida's rules of professional conduct. Mooney was publicly reprimanded and had to take a class on professional responsibility. Mitchell was suspended for 10 days and had to take a class on anger management. And the whole matter was incredibly public and written about in a couple of different newspapers at the time.
   So back to Quentin, maybe his state doesn't enforce the standards of civility the way that Florida does, but I think it should be clear that the real consequences for Mitchell and Mooney weren't that the court forced them to take classes on anger management or professional responsibility. It was how bad the whole thing made both of them look. So the best advice for Quentin would be to just not engage any further. He's not going to accomplish anything of substance by responding in kind. These sorts of email feuds don't really do anything to help the case, the clients or justice, and only move the focus of the case away from the actual substance of the matter. So Quentin should really just keep his responses polite and to the point. He can tell opposing counsel that he agrees with their position without actually attacking them personally.
   In our next hypo, Quentin is representing a client in a case scheduled for trial on Monday. The opposing counsel calls him on the Thursday before trial and requests that Quentin agree to move the trial date because her father just passed away. She indicates that she will file a motion to move the trial date, regardless of what Quentin decides, but that she would strongly prefer that Quentin stipulate to a continuance and sign off on a joint motion to move the trial date. While Quentin doesn't think his client will be disadvantaged by moving the trial date, it does occur to him that if they keep the current trial date, the other side might want to settle, rather than be forced to begin the trial without its lead counsel.
   So what should Quentin do here? While Quentin is right about the potential strategic advantage of maintaining the current trial date, he should be aware that the court is very likely to grant the opposing counsel's motion, regardless of whether Quentin signs onto it or not. Situations which involve attorneys asking for a continuance of a hearing or a deposition or for an extension of time to respond to discovery happen pretty often in practice. So something involving this personal situation, that would almost certainly be granted by a judge. And the judge who may be a trier of fact as well will likely hold Clinton in his client in a negative light for opposing such a motion. It shows a lack of empathy and compassion, and it also would force the court to review opposing briefs and potentially hold a hearing on the matter. So agreeing to this continuance would actually keep Quentin and his client in the good graces of the court and will avoid wasting judicial resources.
   It's also worth noting that if Quentin ever needs a similar courtesy from opposing counsel in this case, or the next one, Quentin's more likely to get it from her if he treats her the way that he would want to be treated. He should keep in mind though, that being civil doesn't mean that he should always agree to opposing counsel's requests without regard for his own client. For example, if the client's investors and management want and need the trial to commence as soon as possible, maybe there's some kind of bet the company litigation, and they need to know and plan for whether the company is going to continue to exist, well, then a lawyer should reject a request for an extension by opposing counsel, since that would actually prejudice his client's interests.
    In this next hypothetical Quentin is involved in an arbitration hearing. On the second day of the hearing, Quentin finds himself eating lunch at the same restaurant as one of the arbitrators. Quentin exchanges pleasantries with her, and then comments that it should be an interesting afternoon based on the expected testimony of his expert witness. So did Quentin mess up? Well, rule of professional conduct 3.5 says that a lawyer shall not seek to influence a judge or communicate ex parte with such a person during the proceeding. And just so you know, an arbitrator is certainly such a person.
   Quentin could validly that this wasn't an ex parte communication since his comments weren't material to the merits of the proceeding. But even if it's unlikely that he'd faced disciplinary action for this, his statement about his witness's testimony was probably inappropriate, if only because it might seem to someone passing by that Quentin was talking to the arbitrator about the substance of the case. So many professionals and creeds warrant against this sort of behavior.
   For example, the American college of trial lawyers code of pretrial and trial conduct states that while a lawyer may be cordial in communicating with the presiding judge in court or in chambers, the lawyer should never exhibit inappropriate familiarity. In social relations with members of the judiciary, lawyers should take care to avoid any impropriety or appearance of impropriety. If you've heard the phrase, Cesar's wife must be above reproach, it's like that. When you're in a position of public trust, you're held to a higher standard. So next time, Quentin should just stick to the pleasantries.
   So now that we've gone through all our hypotheticals, I'd like to take a moment just to wrap up, discuss the legal significance and importance of civility, and some future developments that you should keep an eye out for. But if there's one thing that I hope you take away from today's presentations, is that you don't need to act like a jerk in order to be a good lawyer and a zealous advocate for your client. On the contrary, I think that maintaining civility in your communications can make you a better advocate for client. Judges are more likely to be impressed by a lawyer who is respectful of opposing counsel, litigants and legal process as a whole. And furthermore, as former Supreme court justice, Sandra Day O'Connor once said, greater civility increases a lawyer's enjoyment of practice and the effectiveness of the justice system, while also improving the Paul perception of attorneys.
   So just to go over all of the sources of guidance that an attorney can look for when it comes to meeting these standards for civility, attorneys can look for guidance about how to communicate civilly by turning to the rules professional conduct in their jurisdiction, which are usually based on the model rules. And any professionalism creed that might have been adopted by their jurisdiction. And they should remember that while the rules of professional conduct set a minimum standard expected for every lawyer, professionalism creeds reach beyond that to higher moral aspirations.
   I also want to talk about some future developments, or some developments in this area of law that may occur in the future I should say. Well, at this time, most professionalism creeds are aspirational, voluntary and not actually enforced by the jurisdictions that have adopted them. That may change in the future. Jurisdictions have the option to make their professionalism creeds mandatory, as South Carolina has done. They could incorporate their civility standards into their rules of professional conduct as Florida and Michigan have done. They also have the option to add some teeth to their professionalism creeds by adopting programs for referring offenders to investigation and dispute resolution boards. Utah and Colorado both have programs like this.
   This method will fall short of disciplinary action, but it subjects lawyers who violate terms of professionalism creeds to significant pressure. And there's another issue that I'd like to flag here. There is a concern from some that mandatory civility codes violate the first amendment. I've made the case for civility being an incredibly important value in the legal profession, and I believe it is, but I am actually a first amendment lawyer. And I must say that the argument can also be made that requiring civility, it chills free speech.
   There's an issue with civility codes potentially being used to punish attorneys for speech that's critical of the judiciary. There's the argument that because civility is a subjective value, a civility code cannot be applied even handedly and making it mandatory will both invite and guarantee selective enforcement. There's not much in the way of case law here right now, but that could change if more jurisdictions actually do make civility mandatory.
    So I know it might seem like we've covered a lot of material today, so before we wrap up, let's just recap some best practices for civil communication. Although the contents and enforceability of professionalism creeds are going to defer by jurisdiction, there are a few basic principles that hold true regardless of where you practice law. First, when it comes to attorney-client communications, communicate with your clients about their cases regularly, honestly, and clearly. And provide the information they need to make informed decisions. If necessary, let them know that you cannot engage in conduct that would violate the law or the rules of professional conduct.
   When it comes to attorney third party communications, remember that your duty to zealously advocate for your client does not give you the license to lie, to embarrass or burden third parties in the process. For attorney-attorney communications, treat opposing counsel with courtesy and civility. Don't use the mechanisms of litigation like discovery as a means of harassing opposing counsel. And if he or she makes a just request for cooperation or a scheduling accommodation, don't arbitrarily or unreasonably deny it.
    When it comes to communicating with the court, be courteous and respect the court's time, but also take pains to avoid any appearance of impropriety with judges you have active cases pending before. Now, one more lawyer joke for the road. When attorneys die, why do they bury them 600 feet underground? Because deep down, they're really nice guys. Take our advice and the people you communicate with won't have to dig so deep.
   Thank you for joining us for this overview of civil communications by Quimbee. To learn more about the content of today's presentation, please check out the company and course materials, which include today's slides and associated presenter notes. We thank you again for choosing Quimbee for your CLE needs, and hope that you'll join us again soon.

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