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LAWYERS PROFESSIONALISM: WHAT DOES IT MEAN IN EVERYDAY PRACTICE? SOME REPRESENTATIVE PROBLEMS FOR DISCUSSION AND REFLECTION PARTICIPANTS MATERIALS Presented by: The Tort and Insurance Practice Section of The American Bar Association INTRODUCTION To a practicing lawyer, professionalism" refers to a number of possible attributes, including an ability to combine zealous advocacy with trustworthiness, courtesy, and civility to judges and opposing counsel. In the words of the United States Court of Appeals for the Seventh Circuit: A lawyer's conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling our duty to represent a client vigorously as lawyers we will be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful and efficient manner. Conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully and efficiently. Such conduct tends to delay and often to deny justice. It is relatively easy for lawyers to maintain that they subscribe to these precepts. However, the true test of a lawyer's professionalism lies in his or her ability (and willingness) to adhere to them during the many moments each day when the lawyer communicates, orally or in writing, with opposing counsel, with judges and even with the lawyer's own clients. What the lawyer says (or does not say) in those moments -- and, even more particularly, how the lawyer says it -- becomes in many ways a measure of the lawyer's professionalism. -i- For these reasons, many courts and bar associations have promulgated aspirational creeds or standards of professionalism. Three representative examples -- the Lawyer's Creed of Professionalism promulgated by TIPS in 1989 (and subsequently adopted by a number of state and local bar associations, such as the State Bar of Arizona), the Seventh Circuit's Standards for Professional Conduct, and the Lawyer's Creed and Lawyer's Aspirational Ideals adopted by the Supreme Court of Ohio in 1997-- are attached to these materials. However, simply reading these standards or creeds is not enough. To truly appreciate how they apply in everyday situations, a lawyer needs to spend some time thinking about those situations and how to reconcile the conflicting motivations and pressures that so often come into play. The hypothetical Problems that follow attempt to depict a number of such situations. You will be asked to read each Problem, think about it, and then discuss with your fellow participants what a lawyer should do in that situation in order to act professionally. The Tort and Insurance Practice Section ii PROBLEM NO. 1 Lawyer Alice Able is retained by Victor Corp. to file suit against an aggressive competitor, Ajax, Inc. After Able files the Complaint, she is told by the President of Victor Corp. that she is not to grant any requests for extensions of time in which to respond to the Complaint, nor is she to agree to any requests from the attorneys for Ajax for the postponement of depositions scheduled by Able, unless Victor Corp. specifically authorizes her to do so. The President says: I want them to know that they are in a war, and that we wont let up for a minute until they cave in and settle, on our terms. How should Alice Able respond? a. That she will do exactly what Victor Corp. says, since that is the lawyer's professional obligation? b. That Victor Corp. should get another lawyer? c. That such matters are entirely within the prerogative of the lawyer and that Alice therefore will use her own best judgment in responding to any such requests, taking into account any possible prejudice to the client's rights? d. That Victor Corp. has to realize that such an approach will backfire and cause all sorts of problems as the lawsuit proceeds? e. In some other way? -1- PROBLEM NO. 2 Steve Stickler and Bruce Boggins have been negotiating the sale of the stock of Eureka Enterprises for many weeks, and the negotiations have been frustrating -- especially for Steve, who represents the sellers. Numerous drafts have gone back and forth, with Bruces clients (the buyers) invariably asking for changes and additions. Steve therefore erupts when Bruce calls up and says that his clients now want to add still another restriction on the post-sale activities of the sellers. Bruce then suggest a way of making his request more palatable to Steves clients: Bruce will retype the current draft, add the new restriction that he is asking for (as well as some minor additional changes that he and Steve have already agreed to), and then have his clients sign the revised draft before he sends it to Steve. Steves clients will thus be assured that this is it, and that all they have to do, in order to close the deal, is to also sign the revised draft. Steve agrees. Bruce then sends him a new draft, signed by Bruces clients. Steve reviews it, notes that all of the minor changes that he and Bruce agreed to have been made, and calls in his clients. Steve, however, has failed to notice that this signed draft does not include the additional post-sale restriction that Bruce had asked for. His clients, on the other hand, do note the omission (after Steve has related to them his conversation with Bruce) -- and are immediately eager to sign the agreement as is. a. What should Steve do? Should he permit his clients to sign? Should he call Bruce? b. Suppose that his clients are insistent that he not call Bruce? -2- PROBLEM NO. 3 Julie Jordan is asked to defend a new suit filed against her client, Challenge Corp. After reviewing the file, it appears clear to Julie that three witnesses are critical. All of them, however, are non-parties and all of them reside in another city, out of state. On Tuesday morning, she telephones all three and determines that they can be available for depositions on the following Monday and Tuesday. She also learns that none of them has yet been contacted by plaintiff's attorney, Hank Hammer. Julie therefore "schedules" all three witnesses for depositions on Monday and Tuesday, arranges for them to be served with subpoenas (to insure that they show up), and then sends out a formal notice of depositions, by regular mail, to Hank. Hank receives the notice on Thursday and discovers that he already has commitments for Monday and Tuesday. a. Should Hank call Julie, or move for a protective order immediately? b. Is sending out notices of deposition without prior discussion with opposing counsel the professional way of proceeding? c. Assume that the number of days of notice given to Hank was proper under the applicable Rules of Procedure. Does this satisfy Julies professional obligations to Hank? d. Suppose both Julie and Hank dig in their heels on this, with Julie insisting that the depositions proceed as scheduled and Hank refusing to alter his own schedule or send another lawyer in his stead. What are the potential consequences for the remainder of the litigation? -3- PROBLEM NO. 4 Paul Patton and Hank Hammer are competent and experienced adversaries, who respect each other professionally. Over the years they have opposed each other in court a number of times. They now confront each other again in a major case, before a trial judge who rigidly enforces Case Management Order deadlines, without exception. One day, Paul, who represent the defendant, calls Hank and tells him that he has inadvertently missed the deadline for naming expert witnesses and that he has two experts that he wishes to use at trial. He asks Hank to enter into a stipulation permitting defendant to do so, assuring him that the experts reports will be immediately forthcoming and that he will make both witnesses available for deposition whenever Hank requests. What should Hank do? Is there a conflict here between any professional obligation that Hank owes to Paul and Hanks duty to his own client? If so, can the two be reconciled? -4- PROBLEM NO. 5 Sarah Simmons and Elizabeth Edwards have been engaged in an extremely hard fought and acrimonious lawsuit. Discovery disputes have provoked multiple motions to compel, and every deposition has been a war. Now Elizabeth had noticed the deposition of one of her out-of-state witnesses to take place in a distant city the following Friday. On Monday, however, the witness called to say that he could not be available on Friday, but that he could be available on the following Tuesday. As she hung up the phone, Elizabeth glanced down at her desk, where lay the most recent motion to compel and for sanctions from Sarah. The discovery requests they related to were clearly overbroad, but when Elizabeth tried to explain that to Sarah, Sarah wouldnt even listen. As it happens, Elizabeth could reschedule the deposition for Tuesday, but Friday would be more convenient for her. Plus, Elizabeth had no desire to talk to Sarah unless she absolutely had to. Picking up her calendar, Elizabeth made a note to call Sarah on Wednesday afternoon to tell her that the deposition would be rescheduled. a. After Elizabeth became aware of the witnesss unavailability, should she have immediately contacted Sarah to determine if an agreed new date could be arranged for the convenience of all parties? Or was it professionally appropriate to wait? -5- PROBLEM NO. 6 Alice Able, the defense attorney, is deposing the plaintiff, Clem Callahan. Callahan has been the litigant in several prior cases and insists that he knows the system. He has therefore instructed his attorney, Norris Norton, who is in his first year at the Hammer and Hammer law firm, to continually object and make the deposition as hard as possible on Alice. Norris has been assigned to defend this deposition by senior partner, Hank Hammer, who is in the midst of a trial. What should Norris do? -6- PROBLEM NO. 7 Jennifer Jenkins, plaintiffs counsel in a legal malpractice case, is a partner in a firm of three lawyers. The defendant is represented by Sally Stevens, whose firm has frequently been on the other side in legal malpractice cases filed by Jennifers firm. The judge presiding over the lawsuit has indicated that he wants the matter tried before the end of the year. Jennifer and Sally had informally agreed that all party depositions would be completed before Jennifer went out on maternity leave in May. They had further agreed that the plaintiffs deposition would be completed before Jennifer took the defendants deposition. However, because of scheduling problems, plaintiffs deposition was not taken prior to May 1, when Jennifers leave started. Jennifer now insists that her clients deposition not be taken during her four month maternity leave. She argues that, in her prior experiences with Sallys firm, the senior partner there was frequently unavailable and the scheduling of depositions had to revolve around his schedule. Should Sally: a. Wait until Jennifers return from maternity leave before taking plaintiffs deposition and conducting further discovery? b. Refuse to stay discovery during Jennifers maternity leave because of her obligations to her client to push the case forward? -7- PROBLEM NO. 8 Alice Able, defense counsel for Victor Corp., is attending the deposition of Wanda Williams, a former employee of Victor, which is being taken by plaintiffs counsel, Barry Bravo. Wanda answers several of Barrys questions by saying I dont remember, which causes Barry to repeat essentially the same question -- with only the most minor of variations -- over and over. 1. What should Alice do? a. Object to further questioning on the ground that the question has been asked and answered? b. Object and instruct the witness not to answer? c. Keep quiet and allow the witness to be interrogated repeatedly by the opposing counsel until one of them wears down? d. Recess the deposition and seek a court ruling protecting the witness from further harassment? e. Is there anything else that Alice should do? 2. Suppose Wanda were a current employee of Victor. Should that change Alices approach? If so, how? -8- PROBLEM NO. 9 Acme Industries has been sued by Mom & Pop Hardware for breach of contract. Acme's new general counsel, Arnold Shark, employs Noble & Proper to defend the case with the following instructions: We need to send a message to all hardware stores that we supply, and we therefore want this lawsuit defended very aggressively, regardless of cost. I want you to bury Mom & Pop with written discovery that seeks as much information as possible about their business and finance affairs and which will force them to devote enormous time to locating records and documents. I also want you to take the depositions of every one of their employees and as many of their customers that you can identify. Its obvious that Mom & Pop have limited financial resources. Therefore, an aggressive discovery strategy should force them to throw in the towel and accept a low settlement offer. In response, Noble & Proper should: a. Welcome the opportunity to generate major billings and follow the client's instructions to the letter; b. Give Shark a vague assurance that Noble & Proper will defend the case aggressively, but privately decide to be moderate in its approach; c. Try to persuade Shark that a less onerous approach to discovery could be more successful; d. Advise Shark that, as counsel of record, Noble & Proper will have to use its own professional judgment on the use of discovery, but that Acme's concerns will be weighed carefully in making that judgment; e. Take only such discovery as Noble & Proper believes is warranted, but erring on the side of more rather than less when the issue is close, in deference to the client; f. Proceed with discovery without regard to the client's instructions, telling the client that anything more would be improper; g. Advise Shark that Noble & Proper does not practice law that way and that Acme should take a hike. -9- PROBLEM NO. 10 Alice Able schedules the deposition of the plaintiff's expert on Monday at the expert's office in Denver, Colorado and makes travel arrangements to fly there from her home in Chicago on Monday morning. On Sunday afternoon, the daughter of plaintiff's counsel, Barry Bravo, has a serious auto accident in Texas. Barry takes the first flight to Texas to be with his daughter. From the airport Barry calls the expert witness to postpone the deposition, but he does not have Alices home phone number. He therefore does not call her. Alice travels to Denver on Monday morning, only to learn at the expert's office that the deposition has been canceled by Barry. Upon returning to Chicago, Alice talks to her client, who wants to take the strongest action possible against Barry and Barrys client. What should Alice do? a. File a motion for sanctions seeking, as sanctions, dismissal of the plaintiff's case? b. File a motion for sanctions to recover her travel expenses and attorney's fees for time spent on a wasted trip? c. Call Barry, express sympathy for the accident involving his daughter, and ask if he will voluntarily reimburse Alices client for the expenses that the client will have to bear for Alices wasted trip? Or: d. Is there something else that Alice should do? -10- PROBLEM NO. 11 Alice Able, defense counsel for Warren Cranes, is taking the deposition of the plaintiff, Clem Callahan. Callahan has sued Warren Cranes for negligence, resulting in a soft tissue back injury that has purportedly left him permanently and totally disabled. Barry Bravo, plaintiff's counsel, is an experienced litigator who, in defending the deposition of his client, repeatedly interrupts Able to interject numerous objections and comments, illustrated by the following exchange: Q: Since the accident, have you played golf? Bravo: If you remember. A: I don't remember. Q: Have you engaged in any recreational sports since the accident? Bravo: What do you mean by recreational sports? This question is confusing. It could mean anything from tackle football to tiddly winks. Clem, if you understand this ambiguous question, you can answer. A: The question is confusing but I haven't played any tackle football. Q: I'm not just asking about football. I'm asking you whether you have played any sport for recreation since the accident. Have you? Bravo: Young lady, it's obvious you haven't been a lawyer very long but before you start taking depositions, you should learn how to ask a proper question. Your questions have been consistently confusing and poorly phrased. In fact, they're some of the worst questions I've ever heard. 1. At this point, what should Alice Able do? a. Ignore Bravo's comments and objections and continue her questioning? b. Go off the record to encourage gently, without any posturing, that Bravo change his behavior? -11- c. Object on the record to Bravo's speaking objections and personal criticism and insist that such conduct cease? d. Warn Bravo that relief will be requested from the court if the improper conduct does not cease, and ask the court reporter to mark Bravos objections so that they can be easily located if needed? e. Suspend the deposition in order to seek assistance from the court? f. Is there something else that she should do? 2. Is there anything professionally improper about Bravo's conduct? -12- PROBLEM NO. 12 Plaintiffs counsel, Joe Joseph, retained an out-of-town expert on a key liability issue. Because of the importance of his testimony and his persuasiveness as a witness, Joe always planned on having the expert testify live at trial. One week before trial, the expert phones Jones and tells him that, because of an unexpected conflict, he cannot attend the trial, but that he will make himself available for a video deposition. In order to give opposing counsel, Sam Smith, as much notice as possible, Joe schedules the experts video deposition for the day before the trial, with a cover letter to Sam explaining the circumstances. The deposition proceeds. Joe takes great pains in his direct to ask non-leading and relevant questions. Sam, on the other hand, makes frequent objections, largely on technical grounds, in an effort to frustrate the flow and effectiveness of the experts direct testimony. Sam rationalizes this conduct on the grounds he is only doing what is necessary to reduce the effectiveness of the testimony of an opposing expert. a. What professionalism considerations are applicable here? b. Does Sams duty to vigorously represent his client justify a conscious effort to compromise an opposing partys evidentiary deposition? c. Or does professionalism require Sam to appreciate Joes problem and to reasonably cooperate in Joness effort to obtain a smooth and effective deposition, except for improper or prejudicial questions? -13- PROBLEM NO. 13 You are engaged by an insurance company to represent the driver of an automobile in a vehicular accident causing serious injuries to the plaintiff. Plaintiff arrives at the deposition accompanied by a young lawyer who is "filling in" for the senior lawyer that you have been dealing with until now. After two hours of questioning concerning the liability aspects of the case, you turn your attention to the plaintiff's medical claims and damages. Abruptly, the young lawyer informs you that he has another court engagement scheduled, but that he has no objection to you continuing with your interrogation in his absence. He swiftly gathers up his papers and leaves the deposition room. You are left alone with the plaintiff and the court reporter. a. How do you proceed? b. Should the deposition go forward, since your adversary has clearly stated on the record that he has no objection? c. Would recessing the deposition to a later date be inconsistent with zealously representing your client? d. Do you have any obligation to inform the plaintiff in his lawyer's absence that he can recess the deposition if he desires? e. After the deposition adjourns should you call the senior lawyer and "report" the conduct of the young lawyer? Should you discuss this conduct directly with the young lawyer? -14- PROBLEM NO. 14 Harry and Sally were close friends, to begin with. Sally was also a loan officer at Megabucks Bank. Hector, a friend of Harrys, applied for a loan at Megabucks, and Harry co-signed the note as a guarantor. Sally handled the transaction for Megabucks. Hector defaulted on the loan, and Megabucks sued Harry on his guaranty. Harrys defense: he had been orally assured by Sally that Megabucks needed him as a guarantor simply for the file and Megabucks would never actually go after him. Sally is deposed by Harrys lawyer, who, after establishing Sallys close friendship with Harry, suddenly asks Sally about a trip that she had taken with Harry to New Orleans, where she had visited a certain gentleman. Sally becomes extremely upset. Megabuckss lawyer calls for a break, during which he learns that Sally had an affair with the New Orleans gentleman, but that she is now married to someone else Was it professional to use a personally embarrassing incident in order to shake up an otherwise composed witness? -15- PROBLEM NO. 15 A franchisee sues a franchisor for wrongfully terminating his franchise and for failing to live up to its obligations under the franchise agreement. After all depositions have been concluded, you, as attorney for the franchisee, file a motion for summary judgment. In his answer brief, the franchisor's attorney asserts that "plaintiff's rationalization is nothing more than a bold-faced fabrication;" that "even apart from this mendacity, plaintiff's fable overlooks key facts;" that "plaintiff asks this Court to adopt his narrow view of the world, devoid of rational thinking or an ability to review the record," and that "even if these ravings were true (and mostly they are not), there would be no cause of action." You now begin work on your Reply Brief. a. What comments, if any, do you make with respect to the franchisors castigations? Do you ignore them? Or do you make similar comments about the franchisor's Brief? b. Do you believe that such language adds strength to the franchisor's position and diminishes your client's case in the eyes of the Court? c. Suppose that the franchisor's attorney directly accuses you personally of "lying" or making a "bald-faced fabrication" -- does that change your approach? -16- PROBLEM NO. 16 The Court has ordered that plaintiffs brief in opposition to defendants motion for summary judgment be filed on or before Friday, April 17, and that plaintiffs reply brief be filed no later than Friday, April 24. Plaintiffs counsel, Barry Bravo, finishes his brief on Thursday, April 16. Barry, however, knows that defendants counsel, Alice Able, is leaving town Friday evening for out-of-state depositions on Monday and Tuesday. Barry therefore instructs his office staff to not file his brief until four p.m. on Friday, April 17, and to not deliver a copy to Alices office until after 5:00 p.m. Is Barrys conduct professional? Is it proper? -17- PROBLEM NO. 17 Annette Alexander and Randall Rafferty are tenacious adversaries, and neither is afraid to go to the mat in order to advance his or her client's position. So, although she somehow expected it, when she finished reading the response to her interrogatories, Annette was beside herself. Randall had objected to every one of her questions. Looking back at them, she realized that they were not phrased as carefully as she had intended. However, Annette had written to Randall at the time she submitted the interrogatories, asking that Randall call her if he had any questions about any of them. Annette thought, "Fine. These interrogatories are not that bad, and I am entitled to the answers. I gave Randall a chance, and now we'll see what the judge has to say." Annette therefore instructs one of her associates to prepare a motion to compel and for sanctions and to get a hearing set as soon as possible. a. Should Annette have called Randall and discussed his objections, and the information she was seeking, and then reworded the interrogatories so Randall could then answer? b. What should have been Randall's response to Annette's letter requesting that he call if he thought that any of the requested interrogatories needed clarification? c. Assume that there had been no letter accompanying the interrogatories. Should Randall have nevertheless called Annette to try to work out any differences before filing his objections? -18- PROBLEM NO. 18 Earnest Abrogado closed the case file in front of him and hung up the phone. Another trying conversation with opposing counsel, Rupert Meanie, had just ended, and, just as in dozens of previous conversations, Rupert had been overbearing and unreasonable. Earnest knew the case was fairly straightforward; his client had been involved in a serious accident with a Giganticorp salesperson in town on vacation. Yet, before all the facts had become clear to him, Earnest had filed suit against the salesman individually as well as against the salesman's company, Giganticorp, under the theory of respondeat superior. By now, however, Earnest has pieced together information from several documents which indicates that the salesman probably was not acting in the scope of his employment when the accident occurred. Earnest knows that opposing counsel will discover these same documents eventually, but that it might take him months to put the pieces of the puzzle together. Certain pretrial motions are due, and Earnest is now uncertain whether to leave Giganticorp in the case. Sure, Earnest could make an argument that Giganticorp was somehow responsible, but Earnest also knows that the claim against Giganticorp will not hold up in the long run. Nevertheless, Rupert, who represents both Giganticorp and the salesman, is being intractable in every other aspect of the case. Moreover, Earnest knows that keeping Giganticorp in the case possibly increases the settlement value of the case and certainly gives Rupert more work to do. Abrogado's client strongly insists that Earnest not dismiss Giganticorp. Clenching his teeth, Abrogado decides he could play hardball with Rupert and fight fire with fire: Giganticorp will stay in the case until Rupert is eventually successful in having them dismissed. a. Should Earnest dismiss Giganticorp as a party defendant? b. Should Earnest leave his claims against Giganticorp in the case in order to have a better settlement bargaining chip until the adverse evidence is developed in discovery? c. How should Earnest respond to his client's demand that he retain Giganticorp in the case? -19- PROBLEM NO. 19 Susan Slade hires a major advertising agency to help her develop some advertisements for her law firm. The ad agency suggests that Susie appear in an ad, showing her at a business meeting with her client, wearing a revealing, low-cut red silk dress, and that she lean over the conference room table, while a voice-over announcement says, in a soft, seductive voice: "Susan Slade and Associates -- We Take Care of You and Your Legal Problems." a. Since the ad clearly refers to legal problems, and does not suggest that Susie is doing anything improper, is there a problem with the ad? b. Susie is an attractive woman. Shouldn't Susie take advantage of her assets? c. Is the ad discriminatory? What will women think of it? d. The ad is wildly successful, and brings in a lot of business. Susie's clients all give her a big "thumbs up" on the quality and content of her advertising. Does this change anything? -20- ACKNOWLEDGMENT TIPS gratefully acknowledges the contributions of the Association of Defense Trial Attorneys, the Defense Research Institute, the Federation of Insurance and Corporate Counsel and the International Association of Defense Counsel to this project. With their permission, much of the materials developed by those organizations Joint Committee on Professionalism has been incorporated herein. STANDARDS FOR PROFESSIONAL CONDUCT WITHIN THE SEVENTH FEDERAL JUDICIAL CIRCUIT Preamble A lawyer's conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling our duty to represent a client vigorously as lawyers, we will be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner. A judge's conduct should be characterized at all times by courtesy and patience toward all participants. As judges we owe to all participants in a legal proceeding respect, diligence, punctuality, and protection against unjust and improper criticism or attack. Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends to delay and often to deny justice. The following standards are designed to encourage us, judges and lawyers, to meet our obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of civility and professionalism, both of which are hallmarks of a learned profession dedicated to public service. We expect judges and lawyers will make a mutual and firm commitment to these standards. Voluntary adherence is expected as part of a commitment by all participants to improve the administration of justice throughout this Circuit. These standards shall not be used as a basis for litigation or for sanctions or penalties. Nothing in these standards supersedes or detracts from existing disciplinary codes or alters existing standards of conduct against which lawyer negligence may be determined. These standards should be reviewed and followed by all judges and lawyers participating in any proceeding in this Circuit. Copies may be made available to clients to reinforce our obligation to maintain and foster these standards. -1- Lawyers' Duties to Other Counsel 1. We will practice our profession with a continuing awareness that our role is to advance the legitimate interests of our clients. In our dealings with others we will not reflect the ill feelings of our clients. We will treat all other counsel, parties, and witnesses in a civil and courteous manner, not only in court, but also in all other written and oral communications. 2. We will not, even when called upon by a client to do so, abuse or indulge in offensive conduct directed to other counsel, parties, or witnesses. We will abstain from disparaging personal remarks or acrimony toward other counsel, parties, or witnesses. We will treat adverse witnesses and parties with fair consideration. 3. We will not encourage or knowingly authorize any person under our control to engage in conduct that would be improper if we were to engage in such conduct. 4. We will not, absent good cause, attribute bad motives or improper conduct to other counsel or bring the profession into disrepute by unfounded accusations of impropriety. 5. We will not seek court sanctions without first conducting a reasonable investigation and unless fully justified by the circumstances and necessary to protect our client's lawful interests. 6. We will adhere to all express promises and to agreements with other counsel, whether oral or in writing, and will adhere in good faith to all agreements implied by the circumstances or local customs. 7. When we reach an oral understanding on a proposed agreement or a stipulation and decide to commit it to writing, the drafter will endeavor in good faith to state the oral understanding accurately and completely. The drafter will provide the opportunity for review of the writing to other counsel. As drafts are exchanged between or among counsel, changes from prior drafts will be identified in the draft or otherwise explicitly brought to the attention of other counsel. We will not include in a draft matters to which there has been no agreement without explicitly advising other counsel in writing of the addition. 8. We will endeavor to confer early with other counsel to assess settlement possibilities. We will not falsely hold out the possibility of settlement as a means to adjourn discovery or to delay trial. 9. In civil actions, we will stipulate to relevant matters if they are undisputed and if no good faith advocacy basis exists for not stipulating. 10. We will not use any form of discovery or discovery scheduling as a means of harassment. 11. We will make good faith efforts to resolve by agreement our objections to matters contained in pleadings and discovery requests and objections. -2- 12. We will not time the filing or service of motions or pleadings in any way that unfairly limits another party's opportunity to respond. 13. We will not request an extension of time solely for the purpose of unjustified delay or to obtain a tactical advantage. 14. We will consult other counsel regarding scheduling matters in a good faith effort to avoid scheduling conflicts. 15. We will endeavor to accommodate previously scheduled dates for hearings, depositions, meetings, conferences, vacations, seminars, or other functions that produce good faith calendar conflicts on the part of other counsel. If we have been given an accommodation because of a calendar conflict, we will notify those who have accommodated us as soon as the conflict has been removed. 16. We will notify other counsel and, if appropriate, the court or other persons, at the earliest possible time when hearings, depositions, meetings, or conferences are to be canceled or postponed. Early notice avoids unnecessary travel and expense of counsel and may enable the court to use the previously reserved time for other matters. 17. We will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided our clients' legitimate rights will not be materially or adversely affected. 18. We will not cause any default or dismissal to be entered without first notifying opposing counsel, when we know his or her identity. 19. We will take depositions only when actually needed to ascertain facts or information or to perpetuate testimony. We will not take depositions for the purposes of harassment or to increase litigation expenses. 20. We will not engage in any conduct during a deposition that would not be appropriate in the presence of a judge. 21. We will not obstruct questioning during a deposition or object to deposition questions unless necessary under the applicable rules to preserve an objection or privilege for resolution by the court. 22. During depositions we will ask only those questions we reasonably believe are necessary for the prosecution or defense of an action. 23. We will carefully craft document production requests so they are limited to those documents we reasonably believe are necessary for the prosecution or defense of an action. We will not design production requests to place an undue burden or expense on a party. -3- 24. We will respond to document requests reasonably and not strain to interpret the request in an artificially restrictive manner to avoid disclosure of relevant and non- privileged documents. We will not produce documents in a manner designed to hide or obscure the existence of particular documents. 25. We will carefully craft interrogatories so they are limited to those matters we reasonably believe are necessary for the prosecution or defense of an action, and we will not design them to place an undue burden or expense on a party. 26. We will respond to interrogatories reasonably and will not strain to interpret them in an artificially restrictive manner to avoid disclosure of relevant and non-privileged information. 27. We will base our discovery objections on a good faith belief in their merit and will not object solely for the purpose of withholding or delaying the disclosure of relevant information. 28. When a draft order is to be prepared by counsel to reflect a court ruling, we will draft an order that accurately and completely reflects the court's ruling. We will promptly prepare and submit a proposed order to other counsel and attempt to reconcile any differences before the draft order is presented to the court. 29. We will not ascribe a position to another counsel that counsel has not taken or otherwise seek to create an unjustified inference based on counsel's statements or conduct. 30. Unless specifically permitted or invited by the court, we will not send copies of correspondence between counsel to the court. -4- Lawyers’ Duties to the Court 1. We will speak and write civilly and respectfully in all communications with the court. 2. We will be punctual and prepared for all court appearances so that all hearings, conferences, and trials may commence on time; if delayed, we will notify the court and counsel, if possible. 3. We will be considerate of the time constraints and pressures on the court and court staff inherent in their efforts to administer justice. 4. We will not engage in any conduct that brings disorder or disruption to the courtroom. We will advise our clients and witnesses appearing in court of the proper conduct expected and required there and, to the best of our ability, prevent our clients and witnesses from creating disorder or disruption. 5. We will not knowingly misrepresent, mischaracterize, misquote, or miscite facts or authorities in any oral or written communication to the court. 6. We will not write letters to the court in connection with a pending action, unless invited or permitted by the court. 7. Before dates for hearings or trials are set, or if that is not feasible, immediately after such date has been set, we will attempt to verify the availability of necessary participants and witnesses so we can promptly notify the court of any likely problems. 8. We will act and speak civilly to court marshals, clerks, court reporters, secretaries, and law clerks with an awareness that they, too, are an integral part of the judicial system. -5- Courts' Duties to Lawyers 1. We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We will maintain control of the proceedings, recognizing that judges have both the obligation and the authority to insure that all litigation proceedings are conducted in a civil manner. 2. We will not employ hostile, demeaning, or humiliating words in opinions or in written or oral communications with lawyers, parties, or witnesses. 3. We will be punctual in convening all hearings, meetings, and conferences; if delayed, we will notify counsel, if possible. 4. In scheduling all hearings, meetings and conferences we will be considerate of time schedules of lawyers, parties, and witnesses. 5. We will make all reasonable efforts to decide promptly all matters presented to us for decision. 6. We will give the issues in controversy deliberate, impartial, and studied analysis and consideration. 7. While endeavoring to resolve disputes efficiently, we will be considerate of the time constraints and pressures imposed on lawyers by the exigencies of litigation practice. 8. We recognize that a lawyer has a right and a duty to present a cause fully and properly, and that a litigant has a right to a fair and impartial hearing. Within the practical limits of time, we will allow lawyers to present proper arguments and to make a complete and accurate record. 9. We will not impugn the integrity or professionalism of any lawyer on the basis of the clients whom or the causes which a lawyer represents. 10. We will do our best to insure that court personnel act civilly toward lawyers, parties, and witnesses. 11. We will not adopt procedures that needlessly increase litigation expense. 12. We will bring to lawyers' attention uncivil conduct which we observe. -6- PROPOSED CREED AND ASPIRATIONAL IDEALS TO BE ISSUED BY THE SUPREMIE COURT OF OHIO A LAWYER'S CREED To my clients, I offer faithfulness, competence, diligence, and good judgment. I shall strive to represent you as I should want to be represented and to be worthy of your trust. I shall counsel you with respect to alternative methods to resolve disputes. I shall endeavor to achieve your lawful objectives as expeditiously and economically as possible. To the opposing parties and their counsel, I offer fairness, integrity, and civility. I shall not knowingly make untrue statements of fact or of law. I shall endeavor to consult with and cooperate with you in scheduling depositions, meetings, and hearings. I shall strive to avoid excessive and abusive discovery. I shall seek reconciliation and, if we fail, I shall strive to make our dispute a dignified one. To the courts and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. Where consistent with my client's interests, I shall communicate with opposing counsel in an effort to avoid or resolve litigation. I shall attempt to agree with other counsel on a voluntary exchange of information and on a plan for discovery. I shall strive to do honor to the search for justice. To my colleagues in the practice of law, I offer concern for your welfare. I shall strive to make our association a professional friendship. To the profession, I offer assistance. I shall strive to keep our profession a calling in the spirit of public service, and to promote the understanding of and an appreciation for our profession by the public. I shall endeavor to be aware always that my actions and demeanor, particularly in my professional capacity, reflect upon our system of justice and our profession, and to conduct myself accordingly. To the public and our system of justice, I offer service. I recognize that, in addition to commitment to my client's cause, I have responsibilities to the public. I shall devote some of my time and skills to community, governmental and other activities that promote the common good. I shall strive to improve the law and our legal system, to make the law and our legal system available to all and to promote the understanding of and an appreciation for the same by the public. -1- A LAWYER'S ASPIRATIONAL IDEALS As to clients, I shall aspire: (a) To expeditious and economical achievement of all client objectives. (b) To fully informed client decision-making. As a professional, I should: (1) Counsel clients about all forms of dispute resolution; (2) Counsel clients about the value of cooperation as a means toward the productive resolution of disputes; (3) Maintain the sympathetic detachment that permits objective and independent advice to clients; (4) Communicate promptly and clearly with clients; and (5) Reach clear agreements with clients concerning the nature of the representation. (c) To fair and equitable fee agreements. As a professional, I should: (1) Discuss alternative methods of charging fees with all clients; (2) Offer fee arrangements that reflect the true value of the services rendered; (3) Reach agreements with clients as early in the relationship as possible; (4) Determine the amount of fees by consideration of many factors and not just time spent; and (5) Provide written agreements as to all fee arrangements. (d) To comply with the obligations of confidentiality and the avoidance of conflicting loyalties in a manner designed to achieve the fidelity to clients that is the purpose of these obligations. As to opposing parties and their counsel, I shall aspire: (a) To cooperate with opposing counsel in a manner consistent with the competent representation of all parties. As a professional, I should: (1) Notify opposing counsel in a timely fashion of any canceled appearance; (2) Grant reasonable requests for extensions or scheduling changes; and (3) Consult with opposing counsel in the scheduling of appearances, meetings, and depositions. -2- (b) To treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. As a professional, I should: (1) Not serve motions or pleadings in such a manner or at such a time as to preclude opportunity for a competent response; (2) Be courteous and civil in all communications; (3) Respond promptly to all requests by opposing counsel; (4) Avoid rudeness and other acts of disrespect in all meetings, including depositions and negotiations; (5) Prepare documents that accurately reflect the agreement of all parties; and (6) Clearly identify all changes made in documents submitted by opposing counsel for review. As to the courts and, other tribunals, and to those who assist them, I shall aspire: (a) To represent my clients in a manner consistent with the proper functioning of a fair, efficient, and humane system of justice. As a professional, I should: (1) Avoid non-essential litigation and non-essential pleading in litigation; (2) Explore the possibilities of settlement of all litigated matters; (3) Seek non-coerced agreement between the parties on procedural and discovery matters; (4) Avoid all delays not dictated by competent representation of a client; (5) Prevent misuses of court time by verifying the availability of key participants for scheduled appearances before the court and by being punctual; and (6) Advise clients about the obligations of civility, courtesy, fairness, cooperation, and other proper behavior expected of those who use our system of justice. (b) To model for others the respect due to our courts. As a professional, I should: (1) Act with complete honesty; (2) Know court rules and procedures; (3) Give appropriate deference to court rulings; (4) Avoid undue familiarity with members of the judiciary; -3- (5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of the judiciary; (6) Assist the judiciary in determining the applicable law; and (7) Seek to understand the judiciary's obligations of informed and impartial decision-making. As to my colleagues in the practice of law, I shall aspire: (a) To recognize and to develop our interdependence; (b) To respect the needs of others; and (c) To assist my colleagues in the practice of law and to accept their assistance offered to me. As to our profession, I shall aspire: (a) To improve the practice of law. As a professional, I should: (1) Assist in continuing legal education efforts; (2) Assist in organized bar activities; and (3) Assist law schools in the education of our future lawyers. (b) To protect the public from incompetent or other wrongful lawyering. As a professional, I should: (1) Assist in bar admission activities; (2) Report violations of ethical rules by fellow lawyers; and (3) Assist in the enforcement of the legal and ethical standards imposed upon all lawyers. (c) To promote the understanding of and an appreciation for our profession by the public. As a professional, I should: (1) Use appropriate opportunities, publicly and privately, to comment upon the roles of lawyers in society and government, as well as in our system of justice; and (2) Conduct myself always with an awareness that my actions and demeanor reflect upon our profession. -4- As to the public and our systems of justice, I shall aspire: (a) To counsel clients about the moral and social consequences of their conduct. (b) To consider the effect of my conduct on the image of our system of justice, including the effect of advertising methods. (c) To help provide the pro bono representation that is necessary to make our system of justice available to all. (d) To support organizations that provide pro bono representation to indigent clients. (e) To avoid all forms of wrongful discrimination. (f) To improve our laws and legal system by, for example: (1) Serving as a public official; (2) Assisting in the education of the public concerning our laws and legal system; (3) Commenting publicly upon our laws; and (4) Using other appropriate methods of effecting positive change in our laws and legal system. (g) To devote some of my time and skills to community, governmental and other activities that promote the common good. -5-
"Lawyers Professionalism - American Bar Association - Defending "