Oregon State Bar Bulletin — MAY 2010

A Judge’s Perspective
By Hon. John V. Acosta

Judges and lawyers are partners in ensuring professionalism. Each has a role to play in preventing and addressing unprofessional conduct that erodes the civility of practice and the quality of our professional lives. If judges and lawyers do not effectively respond to unprofessional conduct, or if they condone it by inaction, they effectively reward the actor to the detriment of the judicial process and the public’s perception of our profession as a whole. Oregon lawyers and judges share a long and demonstrated commitment to ensuring that professionalism is always a foremost consideration. With all of this in mind, here is one judge’s perspective on fulfilling the judicial role in addressing unprofessional conduct.

Court Authority to Address Issues of Professionalism
Yes. The court always may use its contempt power to address egregious behavior that occurs in its presence, but less severe behavior also can be — and is — the subject of court regulation. Best known are the obligations imposed on lawyers and parties under the civil rules’ discovery provisions. Both the Federal Rules of Civil Procedure and the Oregon Rules of Civil Procedure permit the court to impose sanctions for violations of the rules and for disregarding court orders. But the rules also permit the court to impose sanctions for conduct that undermines the purpose of the discovery rules even if the conduct is not willful. For example, FRCP 37 is entitled “Failure to Make Disclosures or to Cooperate in Discovery; Sanctions,” and subsection (a)(5)(A) of the rule makes clear that sanctions may be awarded without a finding that a party violated a court order or engaged in willful misconduct.

Imposition of sanctions under the rule turns on a reasonableness standard, a lower measure from the intentional misconduct standard that lawyers typically assume controls their discovery-related behavior. This standard has been applied in the District of Oregon. See, e.g., Trustees of Oregon-Washington Carpenters-Employers Trust Funds v. Van Zant Construction, Inc., 2008 WL 2381641, *3 (D. Or. June 3, 2008). Thus, although not willful misconduct, prolonged procrastination in responding to discovery requests that forces the propounding party to file a motion to compel simply to get a response is sanctionable under Rule 37. See Bilyeu v. City of Portland, 2008 WL 4912048, *3-7 (D. Or. Nov. 10, 2008).

In addition, FRCP 83(a)(1) expressly authorizes district courts to “make and amend rules governing its practice,” a source of authority that the District of Oregon has invoked to establish two rules that govern professional standards of conduct in the district. The first is LR 83-7, “Standards of Professional Conduct,” providing that attorneys practicing in the District of Oregon must, among other things, be familiar and comply with the standards of professional conduct required of members of the Oregon State Bar and this court’s Statement of Professionalism.

The second local rule is LR 83-8, “Cooperation Among Counsel,” which proscribes certain behaviors between opposing lawyers and establishes the consequences for engaging in unprofessional behavior. Note that the rule authorizes the judge to impose sanctions against an attorney who unreasonably refuses to “accommodate the legitimate requests of opposing counsel.” Here, a reasonableness standard is applied to conduct occurring outside the judge’s presence.

Finally, professionalism also is embodied in mandatory conferral requirements adopted by both the U.S. District Court and the Oregon Circuit Courts. See LR 7-1(a)(1)(A), requiring the parties to certify that before filing a motion, they “made a good faith effort through personal or telephone conferences to resolve the dispute and have been unable to do so”; and Oregon Circuit Court Uniform Trial Court Rule 5.010, requiring lawyers to certify that they have conferred on motions as a precondition to their filing.

These rules convey the message that judges expect lawyers to talk and attempt to resolve disputes that could lead to motions, and they apply to virtually every motion. Failure to comply with these rules will incur risk of having the motion denied outright. Ultimately, conferral requirements force lawyers to meaningfully discuss a motion and resolve the issues that lead to the filing of motions. When that occurs, parties are spared unnecessary time and expense, the case moves forward more quickly, and the lawyers might establish a foundation for resolving other disagreements without court involvement.

When Should the Court Review an Issue of Professionalism?
Judges can review an issue of professionalism when a potentially unprofessional act occurs in the judge’s presence or when the issue is brought to the court’s attention. The extent of the court’s review will depend on the unique circumstances of each case. Keep in mind, however, that the court can on its own initiative inquire into conduct occurring outside the courtroom that appears to be unprofessional. For example, a constant flow of discovery or pretrial motions, especially when the motions are permeated with claims of unprofessional conduct, could result in the court ordering the attorneys to attend a hearing to explain their conduct. Judges do monitor their cases, and they will not look well upon conduct that clearly does not advance the merits of the case but instead could lead to unnecessary motions, delays in completing discovery, or unnecessarily prolonging the case. In federal court, a judge can shift to the parties the expense created by uncooperativeness by appointing a special master to preside over the parties’ discovery activities, see FRCP 53(a)(1) (C), and requiring the parties to bear cost of the special master. See FRCP 53(a)(3).

How Should the Court Respond to an Issue of Professionalism?
This depends on the circumstances of the unprofessional conduct. First, the easy situation is when the conduct occurs in the judge’s presence; the judge can often address it with an appropriate admonition. Remember that both state and federal courts in Oregon have established written expectations for professional behavior by lawyers, and the judge can give a pointed reminder of those expectations to the lawyer or lawyers. This could occur in the jury’s presence, and while judges might try to avoid admonishing an attorney in the jury’s presence, the attorney can always avoid such embarrassment by refraining from the behavior in the first place. Ultimately, the court must preserve the dignity of the court in the eyes of the jury and public in general, and doing that could require taking appropriate actions in front the jury or on the record.

Second, the court can address unprofessional content in lawyers’ written submissions, either in the court’s written decision or at hearing. Judges can remind counsel — on or off the record — that such language in a brief is neither helpful to the court nor professional.

Third, if a motion presents substantive violations of ethics, statutes or rules of procedure or evidence that also happen to be instances of unprofessional conduct, then the court can rely on those standards in imposing a commensurate sanction. See, for example, 28 U.S.C. § 1927 (sanctions for unreasonable or vexatious litigation conduct); FRCP 11(c) (sanctions); ORCP 17 D (same); FRCP 37 (expenses, sanctions, and expenses on failure to admit); ORCP 46 (same); UTCR 1.090(2) (sanctions for failure to comply with UTCR or SLR); UTCR 19 (contempt).

Fourth, if the judge anticipates issues of professionalism may arise in a case, there are always pretrial management procedures and rules for asserting greater control over the lawyers and their clients. See, for example, FRCP 16 (pretrial and scheduling conference); UTCR 6.010 (conferences in civil proceedings); Multnomah County SLR 6.014 (pre-trial case management conferences in civil actions).

Why is it a Challenge for Judges to Address Issues of Professionalism?
Most incidents of unprofessional conduct occur outside the presence of the judge. As an example, a discovery motion often involves accusations and counter-accusations, such that by the time it reaches the judge it’s usually impossible to determine who, if anyone, is at fault.

Also, a potential incident of unprofessional conduct often has a limited factual record from which a judge may make determinations and, if there is a factual record, it may be dense with detail. It’s difficult, sometimes impossible, and always time-consuming, for judges to try to determine who “started it.” Thus, keep in mind that if you file a discovery motion that involves such conduct as a component of the dispute, you may well be disappointed in the outcome. Simply put, time constraints often force judges to move past such allegations and focus on promptly resolving the discovery dispute so that the parties can get on with discovery and the case will continue to move forward.

Further, the claimed conduct may be a culmination of discrete actions rather than a distinct and overt incident, making particularly difficult the determination of whether there was any unprofessional conduct at all. Judges don’t live with a case the way lawyers do; they don’t regularly interact with the lawyers on all matters pertaining to the case, and thus, they don’t share the accusing lawyer’s sense of frustration or even anger over the relationship with opposing counsel. What might look like unprofessional conduct to the accusing lawyer with many months of personal experience might look different to the judge reading the motion.

Finally, keep in mind that the source of the unprofessional conduct may become unclear if the accusing lawyer responds in similarly unprofessional fashion. Before you file a motion that involves allegations of unprofessional conduct by the other lawyer, and especially if you are seeking sanctions, first make sure that the other lawyer will not be able to say the same of you in his or her response. If she can, then don’t be surprised when the judge denies your motion or admonishes both sides for unprofessional conduct.

The Hon. John V. Acosta is a magistrate judge of the U.S. District Court for the District of Oregon.

© 2010 Hon. John V. Acosta

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