SPEECH TO NEW ATTORNEYS Regarding Ethics and Civility in the Law: NEVADA FEDERAL COURT
By G. Mark Albright, Esq.
It is a pleasure to be among the first to congratulate you, the newest members of the State Bar and Federal Bar of Nevada. I also extend a warm welcome to all of the relatives and guests of the new attorneys who are present with us today. Take a moment to think about your family and your loved ones and friends, whether they’re here joining us at the ceremony or not. Remember to thank those who have helped you to grow and have given you the emotional and financial support for you to complete your legal education. This is a great milestone in your life and this achievement of yours is undoubtedly a great source of pride for those who have supported you. When one of them calls to ask you to represent them in a legal matter, be sure to help them. Dean Rex Lee suggested new attorneys should help their family with legal disputes because probably the truth is nobody else would hire a brand new attorney anyway. You are now members of a noble and respected profession. The lawyers play a vital role in our society, one that is not to be taken lightly. Our nation is one of laws. The role of the lawyer is to study and understand and guard those laws and principles under which we live. Disputes which cannot otherwise be resolved by your clients will require you to invoke the rights and privileges afforded by our constitution and our state and federal laws.
I’d like to thank our judges for the work that they perform and the services that they render, both in and outside of the courtroom. These judges are talented, smart, hardworking and well aware of their duties as constitutional officers. I recall with fondness my time as a law clerk to Judge George, 25 years ago, and how he took time to train his clerks to practice law. I used to slip out into the courtroom when Clive Jones was coming to argue, because we wanted to learn from him also. When I left to practice law, our first large case was the Hilton Hotel fire litigation, with five deposition tracks almost every day. If Peggy Leen or Roger Hunt were at the deposition, I’d always try and learn from them and discuss deposition and discovery strategies with them at lunch or breaks. All of these judges have been great mentors in our community.
You now belong to a profession that is in part directed to the resolution of disputes. As attorney Edward Bennett William, said “you will be dealing with people who are embroiled in conflict, whose attentions will be centered on that conflict. For many clients the conflict that compelled him or her to come to you will be [their] major concern. It will be a problem that has dominated their thoughts and has consumed their energies and [often their financial resources]. The people you serve will be dependent upon you to shape, direct and resolve that conflict. Your responsibilities will extend far beyond the application of the legal principles that you have spent the last three years studying. All who place their trust and their cause in your hands will have a right to expect the best from you. You must guide your client with practical advice as well as legal theories to a reasonable resolution of the conflict.”
As Abraham Lincoln once said “It is as a peacemaker that the lawyer has a superior opportunity to be a great man or woman.” You will be asked to serve in many capacities outside the practice of law. We encourage you to be of service to your community. All who place their trust and their cause in your hands have a right to expect the best from you. We have every reason to take great pride in our profession. We have a solemn obligation to those who have gone before us, to carry on our functions as lawyers and judges in a manner so as to pass on this legal heritage, untarnished, to the next generation. Each of you has the tremendous potential to make a difference in the lives of others and in our community. Today is the day that sets you apart from others.
As lawyers you fall into a very privileged class. Less than 2% of the population are lawyers. There are many people that will need your help. The underserved and the unserved portions of our population far exceed 2% of the population. We hope that you’ll have a goal to help with pro bono projects.
Our actions as lawyers are governed by various rules, codes and professional expectations. It is indeed unfortunate that uncivil and discourteous behavior has become so widespread that many observers have become desensitized or even disillusioned to the justice system. Some lawyers take the charge of zealous representation to the extreme by supplementing the facts and issues with unnecessary, irrelevant and gratuitous comments. Some also elect to abuse the free speech clause by resorting to the use of colorful language in legal briefs and even during court proceedings or in private discussions with opposing counsel. Sometimes these inappropriate comments have been incorporated into court pleadings resulting in judicial commentary, which is sometimes picked up the media. This only adds to the problem. Even the poet Carl Sandburg wrote in “The Lawyer Knows too Much” the following stanza (often quoted by Justice Dallin Oaks): “Why is there always a secret singing, when a lawyer cashes in? Why does a hearse horse snicker, hauling a lawyer away?”
Let me share a real life example. In the case of Prince v. Bear River Mutual, 2002 56 P.3d 542, the Utah Supreme Court said “We feel it necessary to comment on the briefs in this case. Appellant’s counsel has submitted briefs that are replete with derogatory remarks regarding opposing counsel, the trial court, Dr. Marble, and indirectly this court. Statements such as Bear River’s arguments are “absolutely foolish and asinine” and “ridiculous” that Bear River is “ignorant” that the trial court ignored every opinion ever written by this court and “failed to read and comprehend the actual language of the applicable statute, that Dr. Marble [the expert witness] is “notorious” and a “charlatan” and that Dr. Marble’s opinion is “inarticulate” and an “absurd legal opinion” are wholly inappropriate in an appellate brief. Such remarks are merely argumentative and repugnant to fundamental and rudimentary notions of civility and decorum expected of attorneys. And as we have stated before, derogatory references to others have no place in an appellate brief and are of no assistance to this court in attempting to resolve any legitimate issues presented on appeal.”
In an address to Virginia Law School graduates, Chief Justice William Rehnquist in 2001 remarked that “incivility remains one of the greatest threats to the ideals of American justice and to the public’s trust in the law. Lawyers who fail to exercise requisite courtesy to each other, as well as to the court, undermine the virtues of the profession.”
In remarks delivered to the American Inns of court inTulsaOklahomain 1997, Justice Clarence Thomas said “I believe that the decline in civility among lawyers is due to a broader, more intellectual change in our vision of the laws in our society. Civility is the natural functioning of a legal profession in which we are all servants of that higher, nobler master, the constitution and the law. The lawyer on the other side, or the judge, is not the enemy, but a fellow traveler on the journey toward discovering the correct legal answer.”
Even though we may understandably be disappointed in the outcome of a case or motion, there is really no excuse for personal attacks against opposing counsel. Resorting to personal attacks and derogatory comments is a base reaction that demonstrates a lack of personal and professional discipline. Supposedly many in search of an attorney ask for a lawyer who is reputed to be tough, shrewd, and unrelenting. These traits are often used to portray the negative side of lawyers and are not truly indicative of the caliber or quality of the legal representation. Moreover, they are more often associated with meanness, suggesting a pit bull or a Rambo disposition. In the October 2004 American Bar Association Journal, there is an article about two Florida personal injury lawyers whose advertisements associate their law practice with that of the pit bull breed of dogs. The Florida Bar filed a complaint alleging violations of advertising rules prohibiting the use or images that are not “objectively relevant” to attorney selection and are misleading, deceptive or manipulative.” Judge William C. Herring, who presided over the matter, found that the advertisements and images were constitutionally protected free speech. The two lawyers said that they chose the pit bull because of its strength, tenacity and confidence. Amusingly though, a pit bull breeder felt that associating the dog with the attorneys, would drag down the reputation of the dog, as opposed to the other way around.
Fairness is one of the cardinal rules of good lawyering. Some lawyers are notorious for discovery violations even though they are duty bound to disclose to opposing counsel. Others encourage their clients to be uncooperative and dishonest. Others engage in frivolous motion practice in an effort to either demoralize the other side or extend the litigation process. This type of conduct often misleads the public into believing that lawyers will do anything and everything to win, regardless of the cost or the consequences.
Perhaps we can learn from an antidote about Abraham Lincoln. A man came to him in a passion asking him to file a suit for $2.50 against an impoverished debtor. Lincolntried to dissuade him, but the man was determined to seek revenge. When he saw the creditor would not be deterred,Lincolnasked for and received $10.00 as his legal fee from the Plaintiff. He then gave half to the Defendant, who thereupon willingly confessed to the debt and paid up the $2.50, thus settling the matter to the satisfaction of the irate plaintiff.
Chief Justice Kristin Durum of the Utah Supreme Court, recently indicated that the “consequences of incivility are grave, it increases litigation costs, fails to promote client’s legitimate interest, and diminishes the public’s respect for the legal profession and its ability to benefit society. Our profession has by tradition been a learned and respected one, but respect must be constantly earned and deserved. Public trust and confidence in the American system of justice depend to a significant part on the integrity and the high standards of professional behavior to which every lawyer and judge should aspire.”
In 2005 at the Bar Admission Ceremony for the State of Connecticut, Justice Peter Zarella of the Connecticut Supreme Court said, in part quoting from Chief Justice Andrews in 1891 (Connecticut Supreme Court) the following:
“It is not enough for an attorney that he be honest. He must be that and more. He must be believed to be honest. It is absolutely essential to the usefulness of an attorney that he be entitled to the confidence of the community where he practices. A lawyer needs indeed to be learned, he must have prudence and tact to use his learning and foresight and industry and courage. …He may be a credible and useful member of the profession so long as the practice is to him a clean and honest function. But, if once the practice of law becomes to him a mere brawl for hire, or a system of legalized plunder, where craft and not conscious is the rule, and where falsehood, and not truth, is the means by which to gain his end, then he has forfeited all right to be an officer in any court of justice or to be numbered among the member of an honorable profession.”
The aforementioned quote attributed to Chief Justice Andrews in 1891, and is still relevant today over a century later in an age where aggressiveness, dishonesty and ill temperament are perceived by the public to be the norm in our profession. These characteristics are absolutely contrary to the oath that we take as attorneys granting us the privilege to practice law in this and other courts. And the judges are taking notice.
An experience recounted byUtahtrial Judge Gregory K. Orme provides an example. A young lawyer at the time, Mr. Orme asked opposing counsel for a two day extension of time to answer a complaint. Mr. Orme explained that he needed the extension because the complaint had just been brought to him and he needed the extra time to confer with his client to draft an answer. Opposing counsel refused. Mr. Orme prepared and presented an ex parte motion for a two day extension to Judge Thomas Green. Judge Green explained that it was customary to simply call opposing counsel and obtain an extension. When Mr. Orme explained that he had done just that and had been refused. Judge Green then agreed to sign the tendered order granting the extension, but he initialed a revision, changing two days to thirty days for the extension of time. I would be surprised if opposing counsel in that case ever refused a reasonable time extension again.
Judge Derek P. Pullen of the Fourth District Court inUtahrecently issued a ruling addressing the inappropriate conduct of an attorney. The court published its Order requiring remedial action by the offending attorney and ordered a letter of apology. The ruling by Judge Derek P. Pullen dated March 15, 2006 is very helpful to new attorneys. I quote from the order from the Fourth District Court: “Having ruled on the merits of the motion, the court now turns to the issue of Mr. Doe’s (the names of counsel has been changed) uncivil and unprofessional conduct during oral argument. During the argument, Mr. Doe stated that opposing counsel had made misrepresentations to the court, had made false statements to the court, had made statements that are lies and that the arguments of opposing counsel were absurd, spurious, outrageous and nonsense. Finally Mr. Doe insinuated that opposing counsel must not be able to read. To her credit opposing counsel Ms. Smith exercised restraint and did not respond in kind. She simply stated for the record that she had not made misrepresentations and was offended by Mr. Doe’s uncivil conduct, “the court then continued with its order”. In the courtroom, the lives, fortunes and reputations of litigants are at stake. Lawyers have a sworn duty to represent their clients with courage and zeal. However, the representation must be provided in a respectful and dignified manner. Indeed civility and professionalism are the hallmarks of a learned profession dedicated to public service. Mr. Doe failed to treat opposing counsel in a courteous and dignified manner. Without adequate factual basis he attributed to her improper motives, he was hostile, demeaning and humiliating, and disparaged the integrity, intelligence, morals and ethics of opposing counsel. Such conduct undermines the fundamental goal of resolving disputes rationally, peacefully and efficiently. Mr. Doe is a seasoned member of the bar, who should need no reminder of these obligations. The rhetoric and tone of argument exhibited today will not be tolerated. The Court hereby orders that within ten days of this order Mr. Doe….issue a written apology to opposing counsel.” [UtahBar Journal, December 2006, Pg. 30.] Phil Patti, the assistant bar counsel to the State of Nevada, recently said in the September 2007 issue of the Nevada Lawyer Magazine that having a legal doctrine named after you is rarely a good thing, particularly if the published opinion or order criticizes one’s litigation tactics. I agree, it would not be a good thing.
In Nevada, the Clark County Bar Association has adopted the Lawyers Pledge of Professionalism. This well written and timely pledge states in part that “I will advise my client that civility and courtesy are expected of all participants in the legal system and that such qualities are not a sign of weakness. I will be courteous and civil to other counsel, their clients and office staff. My word is my bond. I will agree to reasonable requests for extensions of time and for waivers of procedural formalities when the legitimate substantive interest of my client will not be adversely affected. I will cooperate with other counsel when scheduling depositions and meetings. I will council my client that a willingness to engage in settlement discussions is consistent with effective representation. I will refrain from using litigation delaying tactics and abusive discovery or any other conduct to harass another party. I will seek to earn a reputation for honor, trustworthiness, and professionalism among my clients, the legal community and the community at large.”
These are wonderful standards of professional conduct that I would encourage all of you to read and adopt as your own.
Please remember that the “Rambo” or ethically challenged lawyers are not better lawyers and do not achieve better results for their clients. As Justice Richard D. Bible said recently inNewport Beach,California. “People are not persuaded by obnoxious or unethical tactics. Intimidation is over-rated as a litigation tool. It does not work in the widest range of my experience. From business cases to criminal pleas and trials. Indeed the success of the daily operation of the courts is in large part based on the credibility established between the courts, the prosecutors, the public defenders and the bar. It may make for good TV from time to time, but in real life, over time, persuasion by use of reason works best. The junkyard dog lawyer tends to get hired on a one shot deal. It’s generally unpleasant for a client to work with such a lawyer. It costs nothing to be nice. It surely is not a sign of weakness.”
On a much grander and more serious scale, we can be reminded of a quote by Sir Winston Churchill. He was once criticized for using diplomatic language in a message to the enemy during World War II. Churchill replied to his critics, “after all when you have to kill a man, it costs nothing to be polite.” It’s always good to have a Churchill quote to put litigation more in perspective.
Judge George has taught some great gems in his courtroom decorum lectures. I quote a few: “Advance honest and meritorious positions. Avoid asserting arguments intended to lengthen or confuse the process. Show courtesy in the courtroom. Avoid interrupting the Judge, it’s better to lose a thought, than to have the judge lose his or her temper. Avoid addressing comments to opposing counsel in open court. This often is offensive to counsel and it undermines the court’s ability to control the proceedings. Rather, always direct your comments directly to the court.”
For the older members of the audience here, much of the advice that the new generation obtains is often through blogs on the web. One such legal blog is directed to giving advice to attorneys. I share with you this recent email to the webmaster:
“Dear Mr. Shafer, my problem is a lawyer inNew York. He’s typical of the type of lawyer who could be practicing anywhere. He’s making my life miserable. He deliberately sets depositions on dates that he knows that I’m not available. He sends letters confirming things I’ve never said. He objects to every discovery request I ever make, no matter how innocuous, daring me to see the judge about it. He rarely returns my phones calls, and when he does he’s condescending, saying things like, “you’ve sure got a lot to learn”. And then as an after thought, he recently said to me: “you little weasely punk”. When I threatened to report his name calling to the Judge in an affidavit, he said, “go ahead I don’t care, I’ll deny it”. I just hate the man, I abhor him. Next week he’ll be in town for a deposition. Do you think I’d be justified in having him killed? Signed, Willing to Risk Everything inInglewood,California.
The reply came back from the editor as follows:
Dear Willing to Risk Everything: As you probably know, having another lawyer killed over a discovery dispute is a very drastic litigation measure. Not only is it drastic but it probably won’t take care of your problem. Lawyers such as the one you describe are all over the country. Sure, you can kill one or two, but others will simply take their place. The second problem is that murder flies in the face of the conventional wisdom that lawyers should be civil to one another.”
Remember that your integrity is not for sale. Your client engaged in the conduct at issue, not you. Your job is to represent your client zealously within the bounds of the law. It is not to win at all costs. Integrity requires courage, strength and the ability to resist powerful pressures. Abraham Lincoln wrote “I desire so to conduct the affairs of this administration that if at the end, I have lost every other friend on earth, I shall at least have one friend left, and that friend shall be down inside of me.” Do not compromise your ethical standards. Always remember that you are the servants of the people and that the practice of law is a privilege, not a right. It is a public trust.
Today an increasing number of lawyers are experiencing burnout, low productivity, insomnia, and stress related illnesses, undoubtedly due to a lack of balance between their work and their personal lives. The ABA has reported that the desire for more time to meet personal and family needs is one of the major reasons that lawyers consider leaving the legal profession. I understand that the sheer number of billable hours that lawyers are required to work in some firms is part of the problem. Nevertheless, we would advise you to take the time to enjoy your family, your friends and your hobbies, to take a break. Don’t always be connected to your Blackberry and mobile device, where you can never get away from the office or emails. You don’t need to return emails the instant they arrive. That can wait a couple of hours to take a family member or friend to a show or to dinner. Set limits on how long you’re going to work, block out time each week for exercise and wholesome recreational activities. Spend some time with friends, on hobbies, sports, community service, gardening, whatever it is that you love to do. Make it a priority, and schedule time to do it.
I hope that you will look forward to the joy and the satisfaction that you will experience through helping your clients during times of great difficulty in their lives, to find order in the chaos, and to find justice in the complexities of our legal system. I extend to you on behalf of the State and Federal Bar and on behalf of the attorneys and judges in this great State of Nevada, our sincerest congratulations and best wishes.
About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on corporate and business law, and representation of professionals, including attorneys appearing before the State Bar of Nevada.