| Oregon State Bar Bulletin — MAY 2008 |
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Our profession as lawyers depends on ensuring professionalism among lawyers, the court and the public we serve. Oregon is blessed with a collegial bar and bench, which serve the interests of individual clients and the greater public good. This collegiality is probably due to the relatively small bar and its bench and bar leaders who set the standards for professionalism through their example and writings. Most recently Judge Daniel Harris and Magistrate Judge John Acosta published "Conduct Counts: Professionalism for Litigation and Courtroom Practice" in the August/September 2007 OSB Bulletin. Their column provides valuable practical advice on incorporating a high degree of professionalism in our practice and in turn becoming more effective advocates.
Despite the clear expectation in Oregon that lawyers will act professionally, we encounter from time to time unprofessional conduct — or what may appear to be unprofessional conduct — by other lawyers. This unprofessionalism can be observed at times by lawyers or firms who market themselves as "hard fighters," "Rambo litigators" and "bulldogs." The costs of unprofessionalism can be high and include costs to clients, the courts and personal costs of unnecessary stress on everyone.
This column focuses on some of the steps a lawyer may take when faced with unprofessionalism by another lawyer. The focus of this discussion is not adherence to ethical standards governed by the Oregon Rules of Professional Conduct but rather the professional standards to which lawyers should aspire. When faced with unprofessionalism, the challenge is how to respond professionally, maintain effectiveness as an advocate, and hopefully create a relationship for better dealings in the future.
1. Gain a full understanding
of the facts.
Before making a judgment about whether a lawyer has acted unprofessionally,
determine the facts. A lawyer’s conduct is often caused by circumstances
outside his or her control. For example, if a lawyer is not producing
responsive documents in a timely manner, the delay may be caused by
the actions of the client rather than the lawyer. Similarly, a delay
in responding to requests for scheduling or conferral may be caused
by a personal issue or another professional commitment. Effective communication
can often reveal whether there is an issue of professionalism. A telephone
call or e-mail to the lawyer, co-counsel or an assistant can often
clear up the matter. The bottom line is to get your facts straight
before operating on the assumption that a lawyer is acting unprofessionally.
With a full picture of the facts, you can effectively respond.
2. Be professional and ignore
the unprofessional conduct.
When faced with unprofessional conduct, the first strategy may be to
ignore it. The conduct may not be worth acknowledging, and at times
a decision to not respond to unprofessional conduct will send the signal
to the offending lawyer that unprofessional conduct will be ineffective.
Some lawyers use unprofessional conduct as a tool to throw their opponent
off. The offending lawyer, however, may abandon the costly approach
of unprofessionalism if it proves ineffective. This strategy of ignoring
unprofessional conduct is known as the "like water off a duck’s
back" approach.
3. Refer opposing counsel to
applicable standards of professional conduct.
After exercising judgment as to whether to respond to the unprofessional
conduct, directly informing your opponent of the unprofessional conduct
can be effective. Even those who act unprofessionally do not like to
think of themselves as having acted in such a way. They often think
of themselves as being "hard fighting" and acting zealously
for the benefit of their client. Reference to applicable standards
of conduct, however, can "educate" the offender especially
if there is a provision that specifically addresses the conduct.
The two following standards apply in Oregon: "Statement of Professionalism" adopted by the OSB House of Delegates and approved by the Oregon Supreme Court effective Nov. 16, 2006, www.osbar.org/_docs/forms/Prof-ord.pdf; "Statement of Professionalism" adopted by the United States District Court for the District of Oregon, www.ord.uscourts.gov/Rules/2006/AppendixofForms/F23_StatementProfessionalism.pdf.
Other standards may apply in Oregon as well; see, Commitment to Professionalism, adopted by the Multnomah Bar Association June 1, 2004, www.mbabar.org/docs/Profcertorder.pdf.
4. Move quickly to avoid the
effects of stonewalling.
An antidote to unprofessional stonewalling by an opposing lawyer on
discovery or other issues is rapid preparation for trial. The reality
of stonewalling efforts is that if unchecked, those efforts can cause
delay and sometimes deny access to necessary discovery. Move quickly
on serving discovery, conferring and seeking any necessary court intervention.
The courts can be unforgiving as discovery deadlines or the trial date
approaches if a party does not timely bring the dispute to the attention
of the court.
5. Research opposing counsel’s
reputation.
Scouting an opponent’s reputation can help in dealing with the
prospect of unprofessional conduct. Oregon has a small legal community,
and a lawyer’s personal reputation is established quickly. In
consulting with enough colleagues, a lawyer’s particular reputation
can be easily determined. If a lawyer has a reputation for a pattern
of unprofessional conduct, you can anticipate problems and be ready
to deal with them more effectively. For example, if a lawyer has a
reputation for being non-responsive to discovery or efforts to confer
on scheduling, you may consider being more diligent about documenting
your efforts and moving faster towards seeking court assistance.
6. Meet and confer by actually
talking to opposing counsel.
In the spirit of determining the facts before addressing what may be
unprofessional conduct, have a personal or telephone conference with
opposing counsel on issues or disputes. Oregon’s conferral rules,
Local Rule 7.1 (federal) and UTCR 5.010 (state), require a "good
faith" effort to confer. The conferral rules require that the
lawyers actually talk or explain in a certificate why conferral did
not occur, and these rules are often strictly enforced. See for example,
Section 4(A)(3) of the Multnomah County Civil Motion Panel Statement
of Consensus ("[The certificate] must either state that the lawyers
actually talked or state facts showing good cause why they did not.").
The conferral rules address the situation in which a lawyer may be obstructive or dilatory in the conferral process. If a lawyer refuses to confer, simply include that in the certification. A clear refusal to confer, however, does not happen frequently. The problems most often arise when a lawyer chooses not to provide sufficient information for a meaningful conferral. For example, some lawyers choose not investigate whether there may be responsive documents and simply "stand" on their objections. The failure of a lawyer to determine if requested documents actually exist can lead to the parties briefing and courts ruling on the discoverability of documents that do not exist. This scenario is costly to the parties and the court when it ends up ruling on hypotheticals.
An antidote for an opposing counsel who refuses to provide sufficient and timely information for conferral may be to send a letter to opposing counsel outlining what information will be expected at the actual conferral. This request for information would include whether discoverable information actually exists and the factual or legal basis for any objection. Depending on the complexity of the case, multiple conferrals may be necessary; but the courts do not tolerate games or delay in the conferral process.
The same strategy of clear communication of expectations can be used for conferral on scheduling issues.
7. Memorialize the issues/dispute
in writing.
A general strategy to defend against unprofessional conduct is to document
the facts. Often times the mere act of memorializing the conduct can
put a stop to it. If the unprofessional conduct becomes an issue appropriate
for the court, the documentation will be essential to presenting the
issue to the court.
8. Tell it to the judge.
One of the most effective strategies to deal with unprofessional conduct
is the "tell it to the judge" approach. In its purest form,
this approach involves a suggestion to the offending lawyer to "tell
it to the judge;" in an alternate form, however, the matter
is simply brought to the attention of the judge. If unprofessional
conduct is obstructing the preparation of a case for trial or prejudicing
a party, the issue should be brought to the attention of the court.
Even if the unprofessional conduct might be collateral to the basic
issue of discoverability of specific information, mention of the
unprofessional conduct may be helpful in obtaining an admonishment
from the court to prevent future problems. Mention of the conduct
provides a data point for the judge. Describing the events that cause
concern in an objective manner can provide a basis for accountability.
If the unprofessional conduct has caused a party to incur fees and
costs, a motion for reimbursement may be appropriate.
Obviously, considerations of time and cost are at play, but these considerations must be weighed against the potential benefit of a favorable ruling and more generally addressing the unprofessional conduct. Judges are necessary to backing up lawyers who encounter unprofessional conduct, especially in the area of discovery. If a court does not address issues of unprofessional conduct when presented, a risk exists that the bad actor may be more likely to continue the conduct.
9. Hold opposing counsel to
the rules in depositions.
Unprofessional conduct in connection with depositions can take many
forms: lack of cooperation in scheduling, delay in starting the deposition
or excessive breaks, coaching objections, and obstructive behavior
such as snickering. Although you may consider the application of the
general strategies discussed above, some specific strategies may be
helpful. If a lawyer does not cooperate in scheduling depositions,
serve a notice and/or seek assistance of the court. If opposing counsel
engages in a pattern of presenting clients long after the start time
set for the deposition, make a record of it and present the issue to
the court. It is improper for a lawyer to use the time scheduled for
deposition as the time to begin preparing a witness for deposition.
If a lawyer is making "speaking" or "coaching" objections, a good practice is to go off the record and politely tell the offending lawyer that you expect compliance with ORCP 39 D(3) or FRCP 30(d)(1) as applicable, which prohibit argumentative and suggestive objections. This reminder is often sufficient to stop the practice. If the practice continues, object to the practice on the record and indicate that you will seek court assistance if necessary. Another effective strategy may be to mark an applicable standard of conduct as an exhibit to the deposition and ask the offending lawyer if he or she will affirm on the record that he or she will comply. See the Multnomah County Deposition Guidelines, www.mbabar.org/docs/depositionguide.pdf.
If problems are anticipated at a deposition, it may be worth the additional cost to have the deposition electronically recorded. An audio or video record of the deposition often deters improper objections and harassment at depositions. In addition to preserving the improper conduct for the future court assistance, there may be some circumstances in which the improper conduct may be brought to the attention of the jury. Be sure to notice the deposition to be taken by audio and/or video.
10. Build trust by working
toward efficient and mutually beneficial resolution.
A broad approach to dealing with unprofessional conduct is to make
efforts to build trust. There is an old saying that "trust begets
trust." Trust can be built by suggesting to opposing counsel mutually
beneficial strategies for streamlining trial preparation or trial of
the case. For example, an offer to stipulate to certain facts may obviate
the need for the opposing counsel to seek costly perpetuation depositions
or certain witnesses for trial. This simple offer may start the "horse
trading" and shift an adversarial dialogue to one of mutual problem
solving to streamline the case for resolution — formally or informally.
11. Go to lunch.
A story is told that many years ago it was a standard practice for
Oregon lawyers to have lunch with their respective opposing counsel
even before the complaint was filed. This lunch was an effort to
attempt to resolve the case in a collegial manner. There is no doubt
that a collateral benefit of this lunch was to set the tone for the
relationship between the lawyers if the case were to go forward.
Getting to know your opponent personally is a good step towards heading off or dealing with any unprofessional conduct that may occur. Unprofessional conduct is far less likely to occur among friends or acquaintances. Thus have lunch or coffee with opposing counsel early in the case.
12. Get involved in bar association
activities.
Involvement in bar association activities is another strategy for heading
off unprofessional conduct. In addition to the benefit of building
personal relationships, bar associations generally serve as a reminder
to our legal community at large that we are a tightly-knit profession.
And as such a lawyer’s daily conduct should reflect that lawyers
work together to serve client interests as well as the public good
in a manner that is respectful to everyone.
ABOUT THE AUTHOR
Richard Vangelisti practices plaintiff’s personal injury law in Portland. He can be reached at (503) 595-4131 or richard@vangelisti.com.
© 2008 Richard Vangelisti