FRIDAY,
MARCH 23, 2007
SINCE 1888
OFFICIAL NEWSPAPER OF THE LOS ANGELES SUPERIOR COURT AND UNITED STATES SOUTHERN DISTRICT COURT
Forum
Show, Don’t Tell
prepared and filed a declaration of one of
his clients that referred to opposing counthics and effective advocacy enhance sel as “alleged attorneys” violated former
each other. In fact, the rules require Business and Professions Code Section
that lawyers do everything they can 6068(f), which prohibited “offensive perto advance the interests of their clients. But sonality”); Hawk v. Superior Court, 42 Cal.
there is one duty that lawyers often forget: App.3d 108 (1974) (attorney who referred
the obligation to treat opposing counsel to opposing counsel as a “high-priced lawwith courtesy. Too many attorneys wrongly yer” violated same section).)
These are slurs that no sensible lawyer
confuse the use of epithets and accusatory
language against their opponents with do- would utter. However, even in the relatively
cool environment of legal briefs, accusaing a good job.
Attorneys have an ethical duty to respect tions of wrongdoing appear that, at the very
one another: “It is the duty of an attorney to least, skirt the ethical line because they are
... maintain the respect due to ... judicial of- disrespectful and discourteous. For example, I have seen a number of legal
ficers.” Business and Professions
The court
briefs with accusations that opposCode Section 6068(b). This is not
ing counsel attempted to mislead
optional: “[A]ny violation of ... will catch
the court or intentionally misrephis duties as such attorney, con- on, withresented the facts or the record.
stitute causes for disbarment or out having
This is disrespectful, not only
suspension.” Business and Proto be told,
because it is unflattering but also
fessions Code Section 6103. One
of the basic principles underlying that oppos- because either of these is a serithe Model Rules of Professional ing counsel ous violation of attorney ethics. It
is the duty of every attorney “[t]o
Conduct is “the lawyer’s obliga- cannot be
employ, for the purpose of maintion zealously to protect and purtrusted.
taining the causes confided to him
sue a client’s legitimate interests,
within the bounds of the law, while main- or her those means only as are consistent
taining a professional, courteous and civil with truth, and never to seek to mislead the
attitude toward all persons involved in the judge or any judicial officer by an artifice
legal system.” Preamble to Model Rules of or false statement of fact or law. Business
and Professions Code Section 6068(d).
Professional Conduct.
Under any reasonable interpretation of
Courts have recognized the importance
of this duty of respect and courtesy to- disrespect, accusations of such serious
ward opposing counsel: “It is vital to the wrongdoing are disrespectful. Therefore,
integrity of our adversary legal process at least unless extraordinary circumstances
that attorneys strive to maintain the highest justify them, these types of accusations are
standards of ethics, civility, and profession- unethical to make.
Another all-too-common accusation
alism in the practice of law.” In re S.C., 138
Cal.App.4th 396 (2006). “Personal attacks that I have seen leveled in legal briefs is
on the character or motives of ... counsel ... that the opponent’s argument is “frivoare misconduct.” Stone v. Foster, 106 Cal. lous.” It might be said that “frivolous” is
sometimes used as a synonym for “weak”
App.3d 334 (1980).
Obviously, this means that obnoxious or “wrong.” In my view, unless justified
epithets are inappropriate. Snyder v. State for some unusual reason, using the epithet
Bar, 18 Cal.3d 286 (1976) (attorney who “frivolous” to characterize an opponent’s
By Dylan B. Carp
E
argument is also an unethically disrespectful charge of wrongdoing.
Again, making this charge against one’s
opponent is disrespectful, not only because
it is unflattering but also because it is a serious charge of wrongdoing. Business and
Professions Code Section 6068(c) (Attorneys have the duty “[t]o counsel or maintain
those actions, proceedings, or defenses only
as appear to him or her legal or just”); Rule
3-200(b), Rules of Professional Conduct.
Moreover, these types of accusations are
not effective advocacy. If your opponent
has misrepresented the facts or the law,
explaining that to the court in a respectful
manner is very effective. Explain that the
opponent has miscited Jones v. Smith for X,
because Jones v. Smith held not-X. Inform
the court that the page of the record to
which the opponent cites does not support
the asserted fact. The court will catch on,
without having to be told, that opposing
counsel cannot be trusted.
I
n contrast, telling the court that one’s
opponent has attempted to mislead it or
lied is much less effective. Such an accusation inevitably invites the court to try
to find some way to defend the opponent’s
honor — a perspective that benefits the
opponent in more ways than one. Further,
the court may disagree about whether the
opponent’s error was intentional, in which
case the court may begin to question the
judgment of the accuser.
More likely, the court simply may be
offended by what may be perceived as
name-calling or unethically disrespectful
conduct.
Whether to indicate respect and courtesy or to advocate effectively, showing the
court that your opponent has erred is better
than accusing her of wrongdoing.
Dylan B. Carp is an associate at Kirkpatrick &
Lockhart Preston Gates Ellis in San Francisco.
Reprinted for web use with permission from the Los Angeles Daily Journal. ©2007 Daily Journal Corporation. All rights reserved.
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