Editor’s note: Early last year, Wolters Kluwer Financial Services, represented by Dorsey & Whitney, sued software maker Scivantage Inc., represented by Akin Gump Strauss Hauer & Feld. The claim was stolen trade secrets. The lead lawyer at Dorsey was Kristan Peters, who joined the firm only a month before the suit was filed. The case was heard by Judge Harold Baer of the federal district court in Manhattan [Bar Talk, "Honesty, Virtue, and the Law," September 2007].
In April 2007 the defendant asked Baer to sanction Peters, accusing her of making misleading statements, disclosing confidential material, judge shopping, and various discovery abuses. At the end of November, Judge Baer issued a 129-page opinion. The vast majority of it was devoted to Peters’s behavior during the case. Judge Baer publicly reprimanded Peters and referred her for further disciplinary proceedings. But at the top and bottom of the opinion, Judge Baer looked past Peters and assessed the state of the legal profession.
To fulfill its promise of providing the fair and ordered administration of justice, our legal system depends upon lawyers and law firms following ethical guidelines. To be sure, zealous advocacy by attorneys is not only expected, it is commendable. Nonetheless, there is a line beyond which such aggressive representation gives way to misconduct.
While frequently under fire, attorney behavior remains largely self-regulating. Lawyers are entrusted with ensuring that both their own conduct and that of their colleagues fall within the bounds of the rules of professional responsibility. Occasionally, as here, this responsibility leads lawyers to bring questionable conduct to the attention of the court. Often, though, to avoid public criticism, lawyers settle amongst themselves without court involvement. And to a large extent, courts-even when aware of the misconduct-are satisfied to allow such self-governance among lawyers.
However, the expectation that lawyers can and will resolve questions of attorney behavior without the intervention of the courts-and thus without the threat of official oversight-is hardly a license for lawyers to sweep transgressions under the proverbial rug by settling out of court. From time to time, a lawyer’s misconduct is so grave and so blatant as to demand more. When such lapses occur in the federal courts, it is not only our prerogative but our responsibility to address them and, where appropriate, impose sanctions. Indeed, as Canon 3B(3) of the Code of Conduct for U.S. Judges makes clear: “A judge should initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a . . . lawyer.”
The instant case, unfortunately, has been marked by a myriad of just such “reliable evidence” of attorney misconduct serious enough that this court felt compelled to act. Sadly, the nub of the problem may not be just the behavior of one or two attorneys or law firms, but a much broader problem that has affected the practice of law generally over the last 20 or 30 years and has in the eyes of many turned what was once a profession into more of a business.
This distinction between the legal profession and a business was eloquently explained over 30 years ago by Charles Breitel, while he was chief judge of the New York Court of Appeals:
A profession is not a business. It is distinguished by the requirements of extensive formal training and learning, admission to practice by qualifying licensure, a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace, a system for discipline of its members for violation of the code of ethics, a duty to subordinate financial reward to social responsibility, and, notably, an obligation on its own members, even in nonprofessional matters, to conduct themselves as members of a learned, disciplined, and honorable occupation.
Chief Judge Breitel’s assessment echoes that of former Harvard Law School dean Roscoe Pound, who had earlier defined a profession as “a group . . . pursuing a learned art as a common calling in the spirit of public service-no less a public service because it may incidentally be a means of livelihood.”
More recently, as the New York Committee on the Profession and the Courts (more frequently referred to as the “Craco Report” after its chair, Louis Craco) observed, the rising number of lawyers and the delocalization of practice have “heightened the commercialization” of the practice of law. Gone are the days where the ambit of a lawyer’s practice extended only so far as the county courthouse on the town square. Today firms are expanding in size and number and now often boast national, even international, reach; likewise, clients and their legal needs have become ever more numerous and complex, with the stakes continually rising-not only in terms of the issues and amounts in controversy, but in the fees that attorneys earn.
The legal profession has seen a transformation wherein the naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of the law, subordinating high standards of service, collegiality, and professionalism as a result. As the committee further observed: “The rise in the mobility of lawyers weakened the ties to firms, institutions, and communities in which professional standards traditionally had been articulated and enforced . . . kept in check by the cultural mores of the relatively small legal community.”
Thus, a dismaying erosion of civility in practice has often accompanied the expansion of our legal profession. Such incivility, the Craco Report points out, “commonly manifests itself as rudeness, refusal to accommodate a colleague’s schedule, judge baiting, or harassment during depositions. . . . Also included under the umbrella are sharp practice tactics such as misrepresenting facts to the court or an adversary and including false information in unsworn documents.” However, while the idealized notion of the small-town lawyer is an anachronism, the idea that civility among lawyers is incompatible with full and effective representation should not be. Indeed, while rule 7-101 of the Lawyer’s Code of Professional Responsibility obligates a lawyer to provide zealous representation, it provides at the same time that “[a] lawyer does not violate [this responsibility] by acceding to reasonable requests of opposing counsel, which do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.”
So, while our system is by its very nature adversarial, it goes without saying that such a system expects-indeed, requires-a measure of civility. Nor will our system long survive as it is if we tolerate the use of misleading or downright false statements by lawyers-to opposing parties or to the court itself-in an attempt to secure a favorable outcome for their clients and themselves.
These and other examples of ethical misconduct are quite simply unacceptable. Such conduct is a drain on valuable judicial resources: When, for example, a litigant misleads the court, it necessarily takes more time for the court to try and sift through the facts and separate truth from falsehood. As important, incivility and contentiousness tend to undermine public confidence in the efficacy of the legal system. Finally, when a lawyer deviates from ethical norms, he or she acts to the serious detriment of the very individuals that have sought his or her counsel with the expectation of competent, acceptable methods of representation.
While I am dismayed at the way in which many law firms today approach the practice of law, I realize that for the most part it is none of my business and indeed not the business of the judiciary in general. The fact that partners are at times made and retained for their rainmaking skills and not for their legal skills; that the number of billable hours is not only the alpha and omega of bonuses but that these hours-or at least the ones that count-often exclude pro bono hours; that who gets credit for originating a piece of business can throw a firm into turmoil and prompt major internecine struggles; or that the bottom line has eclipsed most everything else for which the practice of law stands or stood, to the extent that the practice of law is now frequently described as a business rather than a profession. While decriable, these are, as I said, really not my concern. Rather, it is the fallout from such conduct, some of which we witnessed here, that ineluctably drives some lawyers and some law firms to the kind of conduct that played out before me at this hearing and that then becomes the business of the courts.
On a final note, the reader should be clear that I firmly believe the sentiment expressed in the Craco Report that “the actual level of professionalism brought to bear . . . by thousands of lawyers across the state, in court and office, day in and day out, is extraordinarily high.” I am hopeful that by casting a ray of light on this anomalous and sanctionable behavior the public and the profession will be better served.
Reprimands are hereby imposed. . . .