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Surely, any satisfaction a lawyer might feel for conducting himself with high ethical standards would be hollow if less scrupulous opponents were free to seize the gap in propriety to generate an advantage for their own clients. If the “sleaze factor” were to provide a winning edge to the unscrupulous, clients would flock to the most sleazy. In order to thrive amid the sharp elbows of legal disputes, therefore, lawyers can never think that professionalism is for losers. Indeed, any lawyer interested in carrying out his ethical mandate of competence under Rule 1.1, and who otherwise wants to survive and prosper, must have effective strategies to beat the bad guys. I have canvassed some successful trial lawyers to get a sampling of advice for dealing with those attorneys who tend to overstep the boundaries of proper conduct. First let’s define the problem. Sometimes lawyers (consciously or otherwise) make misleading or exaggerated representations of fact or of law to the court. In one case I handled, opposing counsel referred in a discovery motion to plainly identified redactions I had made as “alterations” of documents, with no mention that there was a straightforward legal dispute as to whether the redacted material was privileged. (I explained the redaction in the opposition, and no harm was done. I suspect the opposing counsel lost some credibility with the court.) Another common venue for polemics is at depositions. With no presiding judge present, lawyers sometimes can’t resist the temptation to “coach” the witness with suggestive commentary or to make distracting speeches, criticizing a line of questioning, rather than noting a simple objection for the record. They may also shout, gesture, or make facial expressions in order to interfere with the questioning. Sometimes a lawyer may interpose the statement “if you know” before the client answers a question, thereby signaling that the witness should deny any knowledge or recollection. Such conduct violates a lawyer’s ethical obligation under Rule 3.5, which prohibits conduct that disrupts a proceeding. TRASH TALK Lawyers may otherwise seek to bully their way through a case with taunts or threats to opposing counsel or witnesses. (It’s the legal world’s equivalent of “trash talk.”) Finally, some lawyers assure opposing counsel they will do one thing, but then do another.
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A common theme of the comments I received was that standing one’s ground calmly, without either taking the bait or acting in any way influenced by an opponent’s tantrum, is often the best way to prevent opposing counsel from succeeding in their efforts to distract from the business at hand. Often, this approach includes a bit of quiet, tongue-in-cheek irony. Hamilton Fox III of Sutherland Asbill & Brennan, for example, states that he has an escalating series of responses for lawyers who act up at depositions: “First, I just ignore the lawyer — act like I did not hear him even if he addresses me directly. On occasion, when the lawyer asks me a question, I might say that I will answer when he notices my deposition, and after that I ignore him.” “This works pretty well most of the time,” Fox says. “Once, when a lawyer insisted on telling me what was wrong with my question, I told the court reporter to stay on the record so he could make his point, but I left the room for five minutes, saying he could tell the court reporter what was wrong with the question, but I did not want to hear it. He shut up after that.” Mark Foster of Zuckerman Spaeder says that the jousting among lawyers that typically accompanies such disruptive behavior rarely serves clients. He says that if a misrepresentation is made, he certainly will correct it, but he prefers to take a low-key approach for two reasons: first, because clients’ interests are rarely advanced by such distractions, and second, because most judges “get it” pretty fast and quickly learn not to rely on the statements of counsel who play such games. Vernon Johnson III of Jackson & Campbell says: “Overall, I think the best way to protect yourself is to convey and project strength. People use inappropriate tactics if they think it is getting them ahead, either with opposing counsel or the judge.” ARE YOU DONE? He cites the tactic of dealing with an obstreperous opponent at deposition by staring at him expressionlessly until he winds down from his outburst, and then calmly inquiring, “Are you done?” An Abe Lincoln story from the Lincoln-Douglas debates illustrates how tact and a sense of humor can deftly turn aside false allegations of an opponent. During one of the debates, Sen. (and former judge) Stephen Douglas said that during an earlier debate his suggestion that he and Lincoln meet in the southern counties of Illinois, where the sentiment was much more favorable to slavery, led Lincoln “to tremble in the knees so that he had to be carried from the platform” and he was laid up for seven days. Lincoln replied slowly, as if contemplating an interesting conundrum: “I don’t know how to meet that sort of thing. I don’t want to call him a liar, yet, if I come square up to the truth, I don’t know what else it is.” Amid the laughter and cheers, Lincoln added that he would turn the floor back over to Douglas “and let the judge set my knees to trembling if he can.” Thomas Kirby of Wiley Rein & Fielding tells what is, in retrospect, an amusing story, illustrating the value of confirming in writing the oral assurances of opposing counsel. “The first lawsuit I handled on my own was a lost-baggage claim in a rural court,” he recalls. “I offered to pay the airline’s maximum liability under the Warsaw Convention,” an international convention regulating liability for air carriers going across international boundaries. The plaintiff’s lawyer said to Kirby that “if I would mail him a copy of the convention, he would continue the case until I returned from my impending vacation. In fact, he promptly took a default judgment for his full claim. When I called in from the shore, my senior partner asked why a sheriff had just seized our client’s airplane,” Kirby says. “Fortunately, I had a written letter confirming the continuance.” Ultimately, he says, “the state supreme court vacated the default for fraud on the court. Moreover, it referred the matter to the local bar, which suspended opposing counsel. But for my letter, my litigation career might have ended before it really began.” Sometimes the antics of opposing counsel, while unsuccessful, may necessitate the expenditure of significant legal fees to fend them off. In those circumstances a motion for sanctions should be considered. Naturally, a sanctions motion should be filed only in a clear case and should be well documented. Many judges look on such motions with disfavor, however, and the lawyers I spoke with agreed that sanctions motions should be filed sparingly. Foster states that he has never filed a motion for sanctions against opposing counsel, eschewing such efforts as having more to do with lawyers’ egos than with client interests. Hamilton Fox says: “Only once have I ever had to go to the judge, and that was when a government lawyer, interpreting some kind of regulation as trumping the civil rules, kept directing a witness not to answer on the ground that I could get the information from another source. I completed the entire deposition and then filed the transcript with my motion. The judge granted the motion before the government could respond, and when the AUSA [assistant U.S. attorney] objected that he had not had a chance to respond, he was told that he could file his response as a motion to reconsider. You can imagine what the ruling was on that motion.” George Kostel of Reed Smith states that when contemplating the filing of a sanctions motion, a lawyer should anticipate that opposing counsel will respond by making countercharges, claiming that moving counsel was the one at fault. He advises, therefore, that in creating a proper record for the motion, a lawyer should “adhere even more zealously to the rules” and ensure that all comments and objections conform precisely to what is permitted. When a lawyer is confronted with an improper interruption at a deposition, he suggests that the lawyer ask opposing counsel to specify what objection under the rules he or she is claiming to assert. He adds that a lawyer should ensure that nonverbal conduct such as standing up, facial expressions, gestures, or raising one’s voice be contemporaneously noted for the transcript, as well. He states that when a clear record is presented, the court is likely to recognize the offending behavior. Finally, when opposing counsel’s conduct goes beyond mere attempts at disruption or intimidation and constitutes a clear ethical violation of sufficient character as to raise substantial doubts as to that lawyer’s honesty, trustworthiness, or fitness, the lawyer is obligated under Rule 8.3 to notify bar counsel unless his own client objects. Of course, the possibility of a disciplinary complaint must never be used as a threat or to gain advantage in a particular case, and doing so is itself unethical. In short, I leave this encouragement to the good guys: Don’t take things personally or let anyone make you take your eye off the ball. Your client is counting on you.


Arthur D. Burger is a director at D.C.’s Jackson & Campbell and is chair of the firm’s professional responsibility practice group. He represents law firms and attorneys in ethics-related matters.

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