Lee Hornberger
This article discusses some civility and ethical issues we experience in our professional practices.
While accepting the Republican presidential nomination on July 16, 1964, Senator Barry Goldwater said: “I would remind you that extremism in the defense of liberty is no vice. And let me remind you also that moderation in the pursuit of justice is no virtue.” When it comes to civility and ethics, Senator Goldwater’s advice concerning extremism and moderation would usually be counterproductive.
“There is a perception both inside and outside the legal community that civility, candor and professionalism are on the decline in the legal profession and that unethical, win-at-all-costs, scorched-earth tactics are on the rise.”
Justice Sandra Day O’Connor advised that “[m]ore civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.”
Fairness and candor to the tribunal
Courtesy and civility are governed to some extent by the attorney’s duty of candor and fairness to counsel and the tribunal. “There are good reasons not to disparage your opponent, especially in court filings. ‘The reasons include civility; the near-certainty that overstatement will only push the reader away … ; and that, even where the record supports an extreme modifier, the better practice is usually to lay out the facts and let the court reach its own conclusions.’”
The conduct of a Department of Justice attorney in scribbling in the margin of a federal District Court judge’s opinion, submitted as an appendix to the Department’s appellate brief, the word “wrong” beside several findings of the district judge was held to be “indecorous and unprofessional conduct.”
In addition, a Justice Department attorney was reprimanded for misquoting and failing to quote fully two judicial opinions in a motion. On the other hand, a federal District Court’s order suspending an attorney from practice in the District for two years for impugning the integrity of the Court was reversed where, according to the Court of Appeals, the attorney’s statements that the judge was anti-Semitic and dishonest were statements of opinion, protected by the First Amendment, and the attorney’s statement that the judge was drunk on the bench, although a statement of fact, was not shown to be false.
Attorney communication with witnesses
There are ongoing ethical issues concerning an attorney communicating with other individuals. In representing a client, an attorney should not communicate about the subject matter of the representation with a party whom the attorney knows to be represented in the matter by another attorney unless the attorney has the consent of the other attorney or is authorized to do so.
This ethical rule can raise issues when the attorney wants to communicate with present employees of the other side. There are several guidelines we should heed in this situation.
First, the attorney may not interview an incumbent management employee. Second, there cannot be communication with a non-managerial employee regarding matters within the scope of his or her employment. Third, there cannot be communication with an employee whose act or commission may be imputed to the other side. Fourth, there cannot be communication with an employee whose statements may be an admission. Some courts have held that this includes mere evidentiary admissions. Other courts have held that the admission must be a binding judicial admission. The latter occurred where it was held that the ethics rules did not prohibit an employee’s attorneys from interviewing Harvard College employees and the trial court’s sanctions ruling against the employee’s attorneys were vacated.
An attorney cannot communicate directly with a represented party even if the adverse party initiates the communication. The attorney cannot “suggest” that the communication be done by the client. An attorney may not instruct a client to tender a settlement offer directly to an opposing party represented by an attorney unless the opposing party’s attorney consents. The communicating attorney might be subject to disqualification. However, under some circumstances, the attorney can obtain leave of court to contact groups of incumbent employees with whom contact might otherwise be foreclosed.
The requirements for communicating with former employees are generally more lenient. Usually, an attorney can talk with a former employee if the employee is not personally represented on the matter. The proscription against communications with represented parties generally does not extend to former employees of a represented entity. Nevertheless, there are several Miranda type warnings which should be given by the interviewer attorney to the former employee. These warnings include clearly telling the former employee that the employee is not required to talk with the attorney, the former employee is not to divulge any attorney-client privilege information, and the communication cannot occur if the former employee is represented by his or own counsel or the entity’s counsel on the subject matter of the communication. In addition, the communicating attorney cannot give legal advice to the individual.
Attorney tape recording
Secret tape recording by the attorney raises delicate issues. Michigan statutory law provides, in part:
Any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs, or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.
In Tyler v Findling, the Michigan Supreme Court enforced mediation confidentiality in a defamation case where one attorney secretly recorded a conversation with another attorney prior to actually meeting with the mediator by striking an affidavit containing statements which were subject to mediation confidentiality. It is generally unethical in many states for an attorney to record any person without that person’s consent. The mere act of secretly but lawfully recording a conversation might not be inherently deceitful. In spite of this, it has been held that the witness interview work product privilege was destroyed because the secret recording by the attorney was done without consent.
Unintentional acquisition of privileged documents
The inadvertent acquisition of privileged documents creates ethical dilemmas. The receipt of plain brown envelopes and “dickie bird” deliveries falls into this category. An attorney who, without solicitation, receives materials which are obviously privileged and/or confidential has a professional obligation to notify the adverse party’s attorney that the receiving attorney has such materials and either follow the instructions of the adverse party’s attorney concerning the disposition of the materials or refrain from using the materials until a resolution of their proper disposition is obtained from the court. This includes the inadvertent receipt of attorney-client privileged letters.
Attorney review of medical records
Issues can arise concerning the timing of the review of an individual’s medical records by the opposing party. For example, in one case, a defendant university’s attorney was sanctioned for unilaterally reviewing the plaintiff’s student medical records from the medical clinic while there were pending objections to the discovery and before the return date in the subpoena duces tecum issued by the attorney for those records.
Conclusion
Ongoing civility and ethical issues require the conscientious attorney to practice both moderation and civility in the pursuit of justice. These issues repeatedly raise concerns in many areas, including interaction with the court and other counsel, brief writing, contacting witnesses, and document retention and review. “In fulfilling our professional responsibilities, we as attorneys, officers of the court, and custodians of our legal system, must remain ever-mindful of our obligations of civility in pursuit of justice, the rule of law, and the fair and peaceable resolution of disputes and controversies.”
__________
Lee Hornberger has a national arbitration practice. He is a former Chair of the Alternative Dispute Resolution Section of the State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, former member of the State Bar’s Representative Assembly, former President of the Grand Traverse-Leelanau-Antrim Bar Association, and former Chair of the Traverse City Human Rights Commission. He is a member of the Professional Resolution Experts of Michigan (PREMi), an invitation-only group of Michigan’s top mediators, and a Diplomate Member of The National Academy of Distinguished Neutrals. He is a Fellow of the American Bar Foundation. He is also a Fellow of the Michigan State Bar Foundation.
He can be contacted at leehornberger@leehornberger.com
