#11724 - Litigation Ethics - Ethics

The adversary system is characterized by independent and contentious presentation of evidence and legal argument to establish a version of the events and a characterization of law that is favorable to the advocate’s client.

Zealous advocacy: the duty of the lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law. The advocate has a duty to use legal procedure for the fullest benefit of the clients cause, but also a duty not to abuse legal procedure. MR 3.1.

Although the attorney has to be competent, MR 1.1, diligent, MR 1.3 and zealous, MR 1.3, he must refrain from using methods that have no substantial purpose other than to embarrass, delay, or burden a third person, MR 4.4.

Title VII race discrimination claims.

Rule 11 of FRCP: judges can sanction lawyers under Rule 11 sua sponte.

Safe harbor provision: Rule 11 motion cannot be filed unless the challenged paper is not withdrawn or corrected within 21 days after service of the motion

Scope of Rule 11: Rule 11 covers only a paper filed in civil litigation in federal court, other than certain discovery documents covered by more specific rules. Oral statements cannot support Rule 11 sanctions unless they advocate contentions previously contained within a written submission.

The reasonable inquire standard: Rule 11(b) requires that a lawyer certify to the court that to the best of his or her knowledge, formed after an inquiry reasonable under the circumstances, that legal contentions are warranted by existing law or a non-frivolous argument for change in the law, and that factual contentions have or will have evidentiary support.

An action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail, as long as the complaint is legally warranted.

A jury found that defendant airline had subjected plaintiff to a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and 42 U.S.C.S. § 1981. The jury denied plaintiff's other claim, also premised on Title VII and § 1981, finding that plaintiff had not been terminated because of his race. The motion before the court sought attorney's fees and costs pursuant to 42 U.S.C.S. § 1988. The court reduced the award of attorney's fees based upon misconduct of counsel. The court based its decision on the fact that plaintiff's attorney called counsel for the defendant a "second rate loser." Moreover, when walking out of the courtroom, plaintiff's attorney would exclaim, "Yuppies out of the way." Further, each day as court began, plaintiff's attorney would say, "Let the pounding begin."

Contempt: judges have the inherent power to punish lawyers for contempt of the court’s authority.

Vexatious multiplication of proceedings: p480

Courts have condemned a number of kinds of prosecutorial statements: send a message; prosecutor invites the jury to put itself in the victim’s position and imagine what the victim experienced

D gain remedy only if those remarks had some prejudicial effects, such as denying due process

The supreme court had to consider whether the developers had the authority as beneficial owners to impose binding CC&Rs. Petitioners' counsel accused the court of appeals panel of judicial misconduct. The supreme court noted that to make bald and unfounded accusations of judicial impropriety in briefs filed with the supreme court was not the appropriate avenue should a lawyer be faced with genuine judicial misconduct. Counsel's unfounded accusations regarding the supposed improper motives of the court of appeals panel were irrelevant to the questions upon which the supreme court granted certiorari. Further, those accusations were scandalous in that they were defamatory and offensive to propriety. Counsel's briefs included a substantial amount of material that was offensive, inappropriate, and disrespectful, and his conduct violated Utah R. App. P. 24(k) and warranted sanctions.

Ethics rules prohibit falsely impugning the integrity of a judge, MR 8.2(a), and engaging in conduct that is prejudicial to the administration of justice, MR 8.4(d).

Appellant attorneys filed an application in the district court for a temporary restraining order and a preliminary injunction on behalf of their clients. In support of the application, appellants filed a memorandum of law which challenged the validity of a certain county ordinance; that memorandum failed to discuss or cite two relevant cases that were adverse and controlling precedent. The district court imposed sanctions against appellants under Fed. R. Civ. P. 11, and reaffirmed such sanctions on remand of the case due to that court's failure to notify appellants in advance that it was considering sanctions. On appeal, the court noted that appellants argued that the cases were not cited because they were not controlling; however, it was clear that appellants' attempts to show that the cases were not controlling were simply post hoc efforts to avoid the imposition of sanctions. Neither the original complaint nor memorandum of law filed by appellants reflected or supported the arguments they raised on appeal. The court concluded that the imposition of Rule 11 sanctions by the district court was warranted, and its judgment was affirmed.

Failure to cite adverse authority: lawyers have a duty to cite controlling authority adverse to their position.

If it is not controlling authority, you are under no ethical obligation to cite this case. However, strategically, we should cite it, distinguish it, and tell the judges why they are wrong.

A lawyer cannot knowingly misstate facts to the court.

Improper influence: a lawyer may not attempt to exert improper influence over the decision makers in a proceeding. A lawyer may not communicate with or seek to influence a person known to be in the jury pool, or on a jury.

The insured claimed that their insurer was obligated to reimburse them for fire damage to their home. Their counsel was dilatory in responding to discovery requests and in filing court ordered documents. Previously, the lower court dismissed the insureds' claim on the ground that the insureds' counsel's failed to comply with discovery and deadlines that were ordered by the lower court. The court remanded the case to the lower court, and the lower court again dismissed the insureds' claim. The court affirmed the lower court's dismissal, holding that the lower court did not abuse its discretion in dismissing the insureds' claim. Although dismissal was a drastic sanction, which the court might not have utilized if it was making the initial decision, the insureds' counsel had a history of dilatoriness, and the insurer had a prima facie defense that the insureds had not rebutted. Therefore, the court concluded that the lower court did not abuse its discretion in dismissing the insureds' claim as a sanction against the behavior of the insureds' counsel.

The case arose when one of the attorney's business clients became involved in a dispute with a former employee that ended up in litigation, and the attorney was contacted by a newspaper reporter who obtained a statement from him. The commission found the extrajudicial statement violated Iowa Code Prof. Resp. DR 7-107(G)(1), (2), and (4). Although the Board of Professional Ethics and Conduct (board) had also charged a violation of Iowa Code Prof. Resp. DR 1-102(A)(1), (4), and (5), the commission made no findings as to that charge. The supreme court concluded the board did not establish a violation of Iowa Code Prof. Resp. DR 7-107 because a reasonable fact finder would not conclude that the statement in question was reasonably likely to affect the fairness of the proceeding. The court held that the board did establish a violation of Iowa Code Prof. Resp. DR 1-102(A) because the attorney's statement in a letter to the reporter that "one judge has already determined that the attorney is unlikely to succeed on the merits of his far-fetched claims" was only partially true.

No extrajudicial statements by lawyers involved in case if knows or reasonably should know will be disseminated to public and will have “substantial likelihood of materially prejudicing adjudicative proceeding”

A lawyer participating in litigation (or another lawyer in his organization) shall not make an extrajudicial statement that the lawyer knows or should know will be disseminated by the press and will have a substantial likelihood of materially prejudicing the case. [MR 3.6]

The rules also state that certain subjects are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a criminal matter--a party's criminal record; the existence or contents of any confession, admission, or statement given by a defendant; and any opinion as to the guilt or innocence of a defendant.

MR 3.6(a)(7) and 3.8(f): Prosecutors cannot make extra-judicial statements making D look bad and exercise “reasonable care” to keep others (like police) from doing so (unless necessary) for legitimate law enforcement purpose.

Plaintiff, beneficiary of remainder interest in decedent's will, challenged the decision of the Court of Chancery of the State of Delaware, which...