Appellate Law

Ethics: Cleaning Up Your Act

This article was originally published in California Litigation, the journal of the California State Bar Litigation Section (vol. 26:2, pp. 30-33).

Author: Benjamin G. Shatz

Ever read a brief and felt the urge to cry out "this stinks?" Well, an appellate court in Indiana had that experience last summer, and meant it literally. The court's opinion dropped a footnote to complain that the physical appellate record "emits an unpleasant odor consistent with that of cigarette or pipe smoke." (Wampler v.  Indiana (Ind.Ct.App. 2012) 970 N.E.2d 269, fn. 1 [nonpub. opn.].) The footnote further "kindly request[ed]" that counsel not file contaminated papers. Yes, litigation can be dirty. Here are a few more recent tidbits that provide good reminders to keep the act clean.  

You Can Bill for That?   

Litigation can become highly emotionally charged activity, but lawyers are supposed to stay above the fray and not become personally involved. This means that lawyers should not become emotionally attached to their clients. To put a finer point on it, lawyers should not sleep with clients.

Over 20 years ago, the ABA's Standing Committee on the Model Rules of Professional Responsibility issued a formal opinion (No. 92-364) pointing out that an attorney's sexual relationship with a client may involve unfair exploitation of the lawyer's fiduciary position and presents a significant danger that the lawyer will lose the objective detachment necessary for professional representation. Numerous states expressly prohibit attorney-client sexual contact. California was the first, enacting both a rule (Rules of Professional Conduct, rule 3-120) and a statute (Business and Professions Code section 6106.9).

Another such state is Minnesota, which has rule 1.8(j): "A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced." Unfortunately, Minnesota had recent occasion to enforce this rule against a lawyer who engaged in a sexual relationship with a vulnerable client — and also billed the client for "meetings" in which they engaged in sexual acts. (In re Petition for Disciplinary Action against Thomas P. Lowe, Minnesota Attorney No. 164574 (2013 Minn. No. A12- 1159).) As a result, this lawyer was not only suspended from practice for violating rule 1.8(j), and rule 1.7 (regarding conflicts of interest), but also was found to have violated rule 1.5, prohibiting the charging of unreasonable fees and not clearly communicating the scope of the representation.

No doubt many wisecracks can be made about this disciplinary action, but we're taking the high road and — following this installment's title — keeping it clean. This is a family publication, after all.

Best Keep That
to Yourself (Part 1)

In a similar vein, if your clients are not irresistible, what about opposing counsel? A male lawyer in New York was suspended last year after interactions with female opposing counsel in the judge's chambers during a pretrial conference.

The two had been left alone in chambers while the judge stepped out to attend to another matter. The New York Appellate Division, Fourth Department, found that this lawyer had exposed himself and fondled opposing counsel. The lawyer admitted only to having engaged in inappropriate conversation and giving opposing counsel a "love tap," which he maintained was a "bad joke."

The referee hearing the matter found that explanation to be "disingenuous." Indeed, the referee concluded that unwanted and highly inappropriate misconduct of a sexual nature had taken place, which included crude sexual references to opposing counsel's anatomy, twice kissing her on the neck, exposing his genitals to her, and shoving both of his hands inside her blouse and bra. You've got to be kidding, right? (In re Baker (N.Y. App. Div. 2012) 945 N.Y.S.2d 921.)

In another widely reported incident of outrageous attorney behavior, a Florida lawyer (and his firm) were removed from a class action for "flagrant disrespect" of opposing counsel. (See Weiss, Law Firm Is Booted Off Case After Lawyer Held Dunkin' Donuts Depositions, Dissed Opposing Counsel (May 21, 2012), In addition to making disparaging statements about opposing counsel in front of his clients, this lawyer's litany of "deplorable behavior" included (1) scheduling depositions to take place at a donut shop; (2) attending those depositions in shorts and a t-shirt; (3) engaging in non-deposition related activities during the depositions. What sort of activities? Well, playing Angry Birds, for one; and drawing pictures of penises for another. The court characterized this as "flagrant disrespect." Yeah, no kidding.

Best Keep That
to Yourself (Part 2)

If you can't keep your mind clean, then at least keep those thoughts to yourself. Lawyers are in the communications business, and so sometimes the compulsion to share too much shines through when it shouldn't. A Tennessee lawyer was recently suspended for being unable to restrain himself during a medical malpractice trial. A disciplinary panel found that the lawyer allowed "disrespect and sarcasm" to overcome his better judgment, resulting in rude, insulting, disrespectful and demeaning language escaping his mouth in open court.

For example, he called opposing counsel a liar in court; and he also told the judge that she might "set a world record for error" in her rulings. The Tennessee Board of Professional Responsibility wrote that no matter how poorly a judge may be performing or how unethical opposing counsel may be, "abusing or insulting the court" cannot be justified. Bullying the judge is rarely a tool of effective advocacy. (Buser, Memphis Lawyer Vows to Fight 60-Day Suspension for Criticizing Judge (Jan. 6, 2013)

Following up on another theme — contrition — addressed by this column before, the suspended lawyer, who is appealing, gained widespread attention by stating publicly that "If I'm unsuccessful on appeal, I will be sitting on a beach for 60 days with a coconut rum and enjoying the time with my children. But I will not be remorseful." Odds are that this comment will not help with the appeal.

This sort of behavior does not just happen outside the Golden State, of course. Our Second District Court of Appeal recently affirmed a sanctions order against a lawyer who exhibited bad behavior, which the opinion characterized as "disrespectful in the extreme." (People v. Jeong (O'Connor) (Jan. 9, 2013, B237998) [nonpub. opn.].) The trial court premised its sanctions order on the lawyer's failure to appear at a hearing. The lawyer denied knowledge of the hearing. But the court found that there was ample notice, including a minute order, and then two telephone calls from the court clerk.

The kicker seemed to be that the lawyer still refused to appear even after the second conversation with the clerk, which made clear that the court was expecting him to do so. The lawyer later claimed to have been sick on the day in question, but the Court of Appeal discounted this purported excuse with the observation that if it were true, one would have expected the lawyer to have simply said so to the clerk.

Moreover, the Court of Appeal ordered that 14 pages of the lawyer's opening brief be stricken because they were peppered with unflattering adjectives about the trial court. The appellate opinion explained, "Vigorous advocacy is always welcome. In this case, however, we have a lawyer who made false statements to the court and whose conduct was disrespectful in the extreme.… Intemperate characterizations of the trial court are inexcusable." The Court of Appeal went on to commend the trial court for its patience and fairness, and characterized the sanctions award of only $500 as "the height of restraint."

Also showing restraint, note how none of these vignettes have been followed by incantations not to act like that. The lessons here are all self-explanatory.



pursuant to New York DR 2-101(f)

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