McDonough Logo

Confidential Consultation



What to do when your adversary is a $#%&??

What to do when your adversary is a $#%&??

There will be no reader ethics question and answer this month.  Hold your applause because I am going to vent.  Indeed, I will pose my own question (unlike the beauties I usually answer).

Question:  What guidance does the Code provide when litigating with an adversary who champions his client’s case to the point of obsession and behaves like a $#%&?

I tried a case recently which took on the trappings of a saloon fight in a Randolph Scott movie.  It began when settlement broke down and the case was sent out for assignment.  When I met my adversary he refused to shake hands because his client was watching and then refused to consent to a reasonable adjournment request.  Thereafter, he inconvenienced witnesses, moved for contempt of someone or something at least once each hour during the trial, and generally engaged in conduct which was, in my opinion, unprofessional.[1]  This got me thinking about civility and professionalism, so I looked to our Code of Professional Responsibility.  Here’s what I found:

On its face, Canon Seven seems to say it all: “A Lawyer Shall Represent a Client Zealously Within the Bounds of the Law.”  DR 7-101(A)[2] reads; “A lawyer shall not intentionally fail to seek the lawful objectives of the client through reasonably available means permitted by law and the Disciplinary Rules…”  However, instead of defining the type of conduct which would violate the Rule, the next line reads: “A lawyer does not violate this Disciplinary Rule” by; granting reasonable requests of counsel, by being punctual (?), by avoiding “offensive tactics”, or by treating all persons involved in the legal process with courtesy and consideration.  While we now know there are four ways to behave which do not violate the Rule, we still do not have any help in determining when, and indeed if, acting like a $#%& becomes a violation of the Code.

Next stop, DR 7-102: “Representing a client within the bounds of the law”.  Hmm, maybe some guidance here?  Nope.  DR 7-102(A)(1) does expressly prohibit a lawyer from taking any action “on behalf of a client” where that action serves “merely to harass or maliciously injure another.”  However, this DR has been limited by application to litigation or settlement processes and tactics, which the lawyer knew, or where it was obvious that the action served no possible legitimate purpose.[3]   The remainder of the Rule addresses conducts involving false evidence, fraud, unwarranted claims, lying, or intentionally engaging in illegal acts.  Clearly more severe than being a garden variety $#%&.

Turn then to DR 7-106; “Trial Conduct”.  That ought to have the answer.  Let’s see, 7-106 (C)(2) tells us not to ask a question intended only to degrade a witness, 7-106(C)(5) says you can’t ignore a local rule or custom “of courtesy” without giving counsel timely notice, and 7-106(C)(6) says not to act in an undignified or discourteous manner which is degrading towards a tribunal.  Seems promising.

Do not ask a question only to degrade a witness.  YES!  I had found one solid rule which actually prohibits a specific act of misconduct relative to being a $#%&.  What about the Rule on observing local customs “of courtesy”?  Sorry, this refers to unwritten local practice ‘rules’, not collegiality or professionalism.  I thought I had another hit on DR 7-106(C)(6); which prohibits “undignified and discourteous” conduct.  However, as Professor Simon notes, this DR “prevents lawyers from insulting a judge or a tribunal.”[4]  I guess we can insult the heck out of each other and act like rival packs of wild Dingos meeting over the carcass of a recently deceased Wallaby; but please, leave the Court out of it.

I flipped through the rest of the Code looking for guidance.  There was nothing to help define if or when a lawyer’s discourtesy or lack of professional civility rises to the level of being unprofessional.  In sum, the answer to my self posed question is nothing.[5]

[1] These acts are generalizations, and for the purpose of this article, which is to discuss the lack of guidance provided to attorneys regarding civility in a litigation setting, please keep in mind that none of the acts complained of were found by a Court to be inappropriate in any way.  Nor am I suggesting that any attorney acted unethically, as opposed to unprofessionally.   Generally where a trial judge does not make an issue of an attorney’s conduct an enforcing agency will not review that conduct, respecting the determination of the trial court.[2] Informed by ECs 7-1, 7-2, 7-3, 7-7, 7-17, 7-20, and 7-39.[3] In Re Capoccia 144 AD2d 231; In Re Wehringer 135 AD2d 279; In Re Benjamin 129 AD2d 886.[4] Simon’s Code of Professional Responsibility Annotated, at 685.[5] I do not mention the Standards of Civility (Appendix A to Part 1200 [The Code] effective September 17, 1997), because it states in its Preamble that these Standards are “principles” of conduct which are not “intended as rules to be enforced” by enforcing agencies, nor intended to supplement or modify” any rules which may pertain to attorney conduct.  Hence, they are of little to no value and simply reflect the impotent hopes and dreams of the drafters.