Take a professional approach in dealing with
I am a young lawyer involved in somewhat significant litigation. The opposing lawyer, who is very experienced, constantly files motions criticizing me and alleging bad conduct. How do I react to this?
Because there are so many lawyers, the old concept of peer pressure doesn't work like it used to. When I began practicing in Philadelphia in the early 1970s, there were about 15,000 lawyers practicing in the Philadelphia region. There are now even more. Similarly, in Chester County, I was the 365th lawyer and there are now more than 2,000.
In the past, a lawyer would not say horrible things about his or her opponent because the attorney would constantly see that opponent in other cases or at bar associations or social functions. Unfortunately, there are so many lawyers now that the normal ostracism that would have occurred 30 or 40 years ago no longer exists.
There are Rules of Civility that have been published and promulgated by the Pennsylvania Supreme Court, but these rules have no disciplinary effect. These are rules setting supposedly minimum standards between attorneys. But these rules are honored in the breach.
The main problem is that law is considered a business now. As it is a business, a lawyer wants to make money. Lawyers make money by showing how tough they are to clients and by winning cases at whatever cost. Further, the old way of helping a younger opponent and teaching him or her as part of a lawyer's general obligation to the profession seems to be long gone. Taking a young opponent to lunch and critiquing his or her performance at a trial or deposition rarely happens anymore.
Many firms seem to take the position that the best line of defense in motions and/or pleadings is to attack the lawyer on the other side. It is very frustrating to see pleadings that say outrageous things about the arguments and/or the opponent. But these documents are read by judicial officers, who talk among each other. If a lawyer is filing these off-the-wall pleadings, that will be noted by a good judicial officer. If a lawyer wants to say outrageous, untrue things about his or her opponent, that could backfire.
This happens many times in appellate briefs. What many lawyers forget is that judges on appellate courts or trial courts were once practicing lawyers. Lawyers who try cases all the time probably know the judges fairly well. It doesn't help one's brief to say bad things about one's opponent, particularly when that opponent is liked and respected by the judges. Obviously, what one puts in a pleading could violate the Rules of Professional Conduct.
If it is blatantly false, then Rule of Professional Conduct 8.4(c) is implicated because a lawyer is not allowed to mislead, misrepresent or state fraudulent information. It could also violate Rule 8.4(d) as conduct contrary to the administration of justice. It may even violate Rules 3.3 and 3.4 in terms of duty and candor to a tribunal and prohibition against presenting or saying false things.
Having said that, some lawyers are never going to change. A sense of history of the legal profession is long gone. Many lawyers have no clue who were the great lawyers and judges in the past. The only thing they are interested in is the next case and how much it is worth. It is a sad commentary, but that is where the legal profession is going.
But a young lawyer has to learn not to overreact. Treat your opponent with respect, even if he or she is acting like a first-class jackass. Do not reciprocate in kind. Try the case and present the issues without critiquing the other lawyer's ability or honesty.
Taking a professional approach at times will temper one's opponent but in the long run will aid the lawyer in presenting his or her case and also gain judicial goodwill. Judges are sick and tired of lawyers criticizing their opponents unfairly or making outrageous statements. Most judges have heard them once too often.
A good lawyer will deal with the facts and law and leave the hysterics about the opponent alone. There is no reason to do it and it demeans the profession. Even for those lawyers who see law purely as a moneymaking business, criticizing opponents may hurt their ability to make money. Law is a profession and lawyers should act accordingly.
Lawyers should seek waivers from potential clients who don't hire them.
I have a fairly high-volume domestic practice and sometimes I will talk to five or six potential new clients a day. Many times, I won't take their cases and later a spouse will call. How can I protect myself so I am not conflicted out?
The Rules of Professional Conduct have been amended relatively recently to allow for continued representation where the lawyer has briefly met with the opposing party. The rule is titled "Duties to Prospective Clients" and is found in Rule 1.18.
This rule was written partly because of the complaints by the family bar that sophisticated clients were conflicting out lawyers by consulting with all the well-known lawyers and then complaining if they ended up representing their spouses. The rule has a more liberal standard to allow a lawyer to remain. There is a more liberal informed consent or, if there is a screening process, a written notice could well preserve the ability to continue with the representation.
Comment 5 to Rule 1.18 offers a suggestion that a lawyer in an initial conversation with a prospective client should have the client agree to and sign a statement that no information disclosed during the consultation will prohibit the lawyer from representing a different party in this matter. Obviously, that should be in writing and comply with the suggestions in Comment 5. It is always difficult to do that with a potential client. If the client is truly not shopping around but instead coming to the lawyer for representation, the client may be somewhat upset that the lawyer is having him or her sign waivers at the very beginning of the representation allowing the lawyer to represent the other side. Every lawyer has to judge when to use this form and when not to.
But the most frustrating aspect is to meet briefly with a prospective client and then six months later get a good client who turns out to be adverse to the person met briefly six months ago, whom the lawyer might barely remember. That can conflict a lawyer out depending on the circumstances. The waiver acknowledgement by the prospective client can go a long way toward preventing that disqualification.
The whole area of conflict of interest with confidential information can become confusing and at times difficult for lawyers to navigate.
An example is when a client comes in with a co-defendant or a potential witness. If that person later becomes a defendant, the lawyer may be conflicted out. Obviously, the lawyer should be very careful about representing a passenger and a driver or two co-defendants in a criminal case because even if there doesn't initially appear to be a conflict, one never knows what can happen down the line. A driver-passenger representation can quickly be ended with the driver joined as an additional defendant.
In conclusion, when a person comes into a lawyer's office, he or she has the right to expect everything will be confidential, whether it is a two-minute consultation or many hours after payment of a substantial fee. It is the lawyer's obligation to tell the client to the contrary. A lawyer should exercise good judgment in getting a waiver from a potential client whom the lawyer doesn't believe is going to hire him or her to preclude future problems.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.