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The Golden Rules for Lawyers (or how NOT to be a Jerk)

Summary: It is not “do unto others before they do it to you” but rather “do unto others as you would have them do unto you.”  In other words, treat people as you would like to be treated.

I attended an ex parte hearing last Thursday at which time I was given the San Diego County Bar Association’s (SDCBA) Attorney Code of Conduct and the United States Constitution.  Now, I do not believe I was singled out since: (1) I do not think that I have a reputation as a reprobate; and (2) opposing counsel was also given one [I don’t think she falls into the reprobate category either].

I called the SDBCA to inquire whether all of the judges were handing out these booklets.  I was informed that the SDCBA handed these out to their members (I’ve never received one until now).  Somehow, some of the booklets got into the hands of a judge and she was sharing the information (I’m thinking, with good reason).

In reading through it, I found that these were first compiled in 2008 which, according to then SDCBA President, Heather L. Rosing, was the “year of the Bar Association’s Civility, Integrity and Professionalism (CIP) Campaign.”  I had heard some years ago that there had been a growing lapse in civility among lawyers.  Thus, the unfortunate need for these rules.

So, the Preamble states that “[t]he San Diego County Bar Association is committed to ensuring, endorsing, and encouraging the highest standards of civility, integrity and professionalism.  Lawyers, law firms, corporate legal departments, public interest and entity lawyers, and judges are invited to use this code as a tool to remind attorneys to aspire to such standards and to exhibit good manners and common courtesy to everyone involved in the practice of law, and the judicial process.  Although this code is not a separate basis for sanctions nor a basis for ancillary litigation, it is intended to reflect acceptable standards of conduct for attorneys in San Diego County.”

The following is the Code of Conduct:

I. GENERAL

A. Lawyers must observe all rules of law, including the California Rules of Professional Conduct and the State Bar Act particularly B & P Code §6068. 1

B. Lawyers should honor their commitments.

C. Lawyers should honor and maintain the integrity of our system of justice.

D. Lawyers should not compromise their integrity for the sake of a client, case or cause.

E. Lawyers should conduct themselves in a professional manner.

F. Lawyers should be guided by a fundamental sense of fair play in all professional dealings.

II. DUTIES OWED IN PROCEEDINGS BEFORE THE COURT

A. Lawyers should always be courteous and respectful to the court.

B. Lawyers should always be candid with the court.

C. Lawyers and clients appearing in court should dress neatly and appropriately.

D. Lawyers should be on time.

E. Lawyers should be prepared for all court appearances.

F. Lawyers should attempt to resolve, by agreement, their differences relating to procedural and discovery matters.

G. Lawyers should discourage and decline to participate in litigation that is without merit or is designed primarily to harass or drain the financial resources of the opposing party.

H. Lawyers should avoid any communication, direct or indirect, about a pending case with a judge except as permitted by court rules or otherwise authorized by law.

I. Lawyers should refrain from impugning the integrity of the judicial system, its proceedings, or its members.

III. DUTIES OWED TO MEMBERS OF THE BAR

A. Lawyers must remember that conflicts with opposing counsel are professional and not personal; vigorous advocacy is not inconsistent with professional courtesy.

B. Lawyers should treat adverse witnesses, litigants and opposing counsel with common courtesy, good manners, fairness, and due consideration.

C. Lawyers should not be influenced by ill feelings or anger between clients in their conduct, attitude or demeanor toward opposing counsel.

D. Lawyers should conduct themselves in discovery proceedings as they would if a judicial officer were present.

E. Lawyers should not use discovery to harass the opposition or for any improper purpose.

F. Lawyers should not intentionally make any misrepresentation to an opponent.

G. Lawyers should not arbitrarily or unreasonably withhold consent to a just and reasonable request for cooperation or accommodation.

H. Lawyers should not attribute to an opponent a position not clearly taken by the opponent.

I. Letters intended to make a record should be scrupulously accurate.

J. Lawyers should not propose stipulations in the presence of the trier of fact unless previously agreed to by the opponent.

K. Lawyers should avoid interrupting an opponent’s legal argument unless there is a legitimate basis for an appropriate objection.

L. Lawyers in court should address opposing lawyers through the court.

M. Lawyers should not seek sanctions against another lawyer to obtain a tactical advantage or for any other improper purpose.

N. Lawyers should inspire and encourage opposing counsel to conform to the standards of this code and to amicably resolve related disputes promptly, fairly and reasonably, with resort to the court for judicial relief only if necessary.

O. Lawyers should conduct themselves so that they may conclude each case with a handshake with the opposing lawyer.

I have had experience in some of these rules as follows:

Section II, Statement F: Lawyers should attempt to resolve, by agreement, their differences relating to procedural and discovery matters.

Believe it or not, San Diego is a small town, at least with respect to the legal community. As Plaintiffs’ counsel, I tend to be involved with the same attorneys again and again with regard to cases filed in San Diego County.  Thus, we tend to try to work together to resolve our conflicts. Although the reason may be obvious, just let me say that I think it is a bad idea to run to court to request judicial intervention to resolve a conflict.  We’re grown-ups and we should be able to work things out.

Additionally, an attorney does not want to burn another attorney here because: (1) word will get out and hurt that attorney’s reputation; and (2) what goes around, comes around.

As it were, most of the defense counsel I encounter are professional, knowledgeable, courteous and cooperative.

Contrary to what some people may think, you want your attorney and opposing counsel to get along.  Otherwise, the litigation is prolonged and the client gets charged more. The clients can hate each other but the attorneys should not.  An attorney can vigorously represent his or her client’s interest and still get along with opposing counsel.

Section III, Statement B: Lawyers should treat adverse witnesses, litigants and opposing counsel with common courtesy, good manners, fairness, and due consideration.

How true this is.

For example, representing plaintiffs in medical malpractice cases, since the majority of them are married, I have had numerous cases involving loss of consortium (See Post #2).  In all but one, opposing counsel have questioned the circumstances surrounding the loss of consortium in the most professional manner, e.g., how has the injury to your spouse affected your marriage?  Are there activities that you both used to do that you now cannot do due to your spouse’s injuries?”

However, in the one case, opposing counsel sent interrogatories (specially prepared questions to address the issues in the case) which asked very specific, embarrassing questions concerning the impact on the marriage.  Pertinent parts of my responsive letter, as well as those special interrogatories, are set forth below:

“With respect to the special interrogatories, we agree that you are entitled to information regarding the loss of consortium claims.  However, we will only respond to appropriate questions. These are not.

“Specifically, special interrogatories 1 through 25, which are propounded to both [husband and wife], ask:

the number of days per week they have sexual relations (#1);

how many times per day they have sexual relations (#2);

the length of time of each sexual session (#3);

how many partners they currently have sexual relations with (#4);

to identify all sexual partners they currently have (#5);

what sexual positions they currently engage in with their partners (#6);

whether they currently have oral sex (#7);

the number of times per week they currently engage in oral sex (#8);

the number of days per week they had sexual relations with each other during their first year of marriage (#9);

how many times per day they had sexual relations with each other during their first year of marriage (#10);

the length of time of each sexual session with each other during their first year of marriage (#11);

how many partners they had sexual relations with other than their spouse during the first year of marriage (#12);

to identify all sexual partners each had during their first year of marriage other than their spouse (#13);

what sexual positions they engaged in with those partners (#14);

whether they had oral sex during their first year of marriage (#15);

the number of times per week they engaged in oral sex during their first year of marriage (#16);

the number of days per week they had sexual relations prior to their marriage (#17);

how many times per day they had sexual relations prior to their marriage (#18);

the length of time of each sexual session prior to their marriage (#19);

how many partners they had sexual relations with prior to their marriages (#20);

to identify all sexual partners they had prior to their marriage (#21);

what sexual positions they engaged in with their partners prior to their marriage (#22);

whether they had oral sex prior to their marriage (#23);

the number of times per week they engaged in oral sex prior to their marriage (#24);

and the number of times they engaged in oral sex prior to their marriage (#25).

“During our initial telephone conversation regarding the case, you asked whether [the wife] was going to pursue her loss of consortium claim.  You also indicated that it could be embarrassing for her and then stated, “just kidding.” Obviously, you weren’t kidding.

“It is one thing to ask how the accident has affected their sex life.  It is another to ask voyeuristic questions that invade their, as well as potentially third persons’, right to privacy.  A party’s sexual practices are protected by the right of privacy.”  Vinson v. Sup. Ct. (Peralta Comm. College Dist.) (1987) 43 Cal.3d 833, 841.  Further, a party’s sexual activities outside marriage are within the zone of privacy protection.  The rights protected are both those of the party and also those of third persons with whom the party had sexual relations.  Morales v. Sup. Ct. (1979) 99 Cal.App.3d 283, 289.290).  These questions are unprofessional.

“Please note that, in [another] case, special interrogatories were propounded regarding the loss of consortium claim.  We responded to those interrogatories, the only objections being expert opinion and early expert disclosure.  Defense counsel had crafted these interrogatories in such a way as to elicit the relevant information without trying to embarrass our clients and without invading anyone’s right to privacy.  Should you propound similar interrogatories of that professional caliber, we will respond accordingly.”

I would have welcomed a motion to compel so that I could hear opposing counsel explain to the judge why he needed answers to these questions.  Instead, I never again heard from opposing counsel regarding these special interrogatories.

Thus, as shown above, the need for Section III, Statement B.

Section III, Statement L: Lawyers in court should address opposing lawyers through the court.

This can be a tough one. In normal conversation, everyone talks to each other.  However, in court, an attorney only speaks to the judge.  An attorney should not turn to other counsel and speak to him or her.

Some judges are not strict with this rule.  Many years ago, I was in court working through jury questionnaires with a judge and opposing counsel.  Opposing counsel asked me to agree to something and I called him by his first name and responded.  Even as the words came out of my mouth, I knew that I had committed an error.  However, I guess the judge felt that this was an informal matter and let it slide.

However, in the not too distant past, I was in court at a hearing and I looked at opposing counsel stating that I did not know whatever it was I did not know he was doing.  The judge took me to task on that one, stating that we were only to address the court and not each other.  Now, I know that.  But, again, it is easy to slip up on this.

Section III, Statement O: Lawyers should conduct themselves so that they may conclude each case with a handshake with the opposing lawyer.

I particularly like this one.  Life is too short to be a jerk.

1 Without boring you with all of the details, Business and Professions Code §6068 essentially says pretty much what these rules say (with some additions) but with loftier language.

Published By: Patricia I. James, Esq.

**No portion of this Post is intended to constitute legal or medical advice. The views expressed are solely those of the author**