# Presentation: 277305

## The ABC’s of Civility in the Legal Profession: Taking the High and Ethical Road to Effective Advocacy

***Lei-Chala I. Wilson, Esq.***
***Law Offices of the Public Defender***
***San Diego, CA ***
***The Hon. Marguerite D. Downing***
***Los Angeles Superior Court***
***Los Angeles, CA***

**Notes:**

82nd Annual Meeting of the National Bar Association
NBA Criminal Law and Juvenile Justice Section
Tuesday, July 31, 2007 2:30 p.m. - 4:30 p.m.
MCLE: 2 Hours 

## Sources of Law	

*California Rules of Professional Conduct and the State Bar Act*
*	**www.calbar.ca.gov*
- 	Hereafter “RPC”
- 	1-100(A): “The following rules are intended to regulate professional conduct of members of the State Bar through discipline . . . They have been adopted . . . To protect the public and to promote respect and confidence in the legal profession.”
*CJP: Code on Judicial Performance*

*ABA Model Rules of Professional Conduct (2003 Edition)*
- 	Hereafter “MR”
- 	California appellate courts frequently cite the ABA Model Rules
- 	Nation-wide trend to adopt ABA Model Rules
- California Attorney Guidelines for Civility and Professionalism
- 	(Adopted 07/20/07)

## District Conference; Guam and SaipanMCLE: 1 Hour in Ethics

- Get practical tips from a seasoned trial attorney and a Superior Court judge. Learn how to best present yourself and your client in court and the importance of dealing effectively with courtroom staff.
- Remember that as a member of the State Bar and the legal profession, you are bound by the Rules of Professional Conduct, ABA Model Rules (in some jurisdictions, case law, and statutes). You should also be familiar with ethic opinions and any guidelines that have been adopted.
- The practice of law evolves on a daily basis. You will make mistakes and most will be forgiven. That is why it is called “the practice of law.” Enjoy and learn!

## California Attorney Guidelines of Civility and Professionalism

- Introduction
**As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.**
_** **_
**These are guidelines for civility. The Guidelines are offered because civility in the practice of law promotes both the effectiveness and the enjoyment of the practice and economical client representation. The legal profession must strive for the highest standards of attorney behavior to elevate and enhance our service to justice. Uncivil or unprofessional conduct not only disserves the individual involved, it demeans the**** ****profession as a whole and our system of justice.**** **
_** **_

## Introduction (Continued)

**These voluntary Guidelines foster a level of civility and professionalism that exceed the minimum requirements of the mandated Rules of Professional Conduct as the best practices of civility in the practice of law in California. The Guidelines are not intended to supplant these or any other rules or laws that govern attorney conduct. Since the Guidelines are not mandatory rules of professional conduct, nor rules of practice, nor standards of care, they are not to be used as an independent basis for disciplinary charges by the State Bar or claims of professional negligence. **
**The Guidelines are intended to complement codes of professionalism adopted by bar associations in California. Individual attorneys are encouraged to make these guidelines their personal standards by taking the pledge that appears at the end. The Guidelines can be applicable to all lawyers regardless of practice area. Attorneys are encouraged to comply with both the spirit and letter of these guidelines, recognizing that complying with these guidelines does not in any way denigrate the attorney’s duty of zealous representation.**

## A

- 	Always be on time. If you are going to be late for a court appearance, a quick phone call to the court does wonders and avoids sanctions. Keep a roster of the courtroom phone numbers with you so that you have the numbers available.
- 	CAAGC&P: Section 5: Punctuality
- 	An attorney should arrive sufficiently in advance to resolve       preliminary matter.
- Advise and alert the bailiff/deputy as to any security concerns with your client, victims, witnesses or family members.
- Announce your appearance clearly, succinctly and whether it is a special or general appearance.

## B

- Be polite and courteous to the court clerk, staff and bailiff. They have a direct line to the judge who will be hearing your case. They actually run the courtroom and can determine when your case will be called.
- CAAGC&P- Section 14: Conduct in Court
- 	An attorney should maintain respect for and confidence in a judicial office by displaying courtesy, dignity and respect towards the court and courtroom personnel.
- Be brief in your on the record requests to the court.
- CAAGC&P Section 9: Discovery
- 	An attorney should refrain from self-serving speeches and speaking objections.

## C

- Calendar your upcoming court dates in your files immediately following your court appearance to avoid oversetting cases and missing future court appearances.
- Client control is essential and you should acquaint/advise your client with your clues/signs when it is time for the client to stop talking to the judge (i.e., quit while you are ahead or do not let your client dig his own grave any deeper).
- 	However, be aware that the client has the right to allocution – to speak to the judge during sentencing.
- 	CAAGC&P: Section 4: Communications
- 		As an officer of the court, an attorney should not allow clients to 	prevail upon the attorney to engage in uncivil behavior.

## D

- Do not make personal attacks against or disparage opposing counsel while in open court in front of the judge or a jury. Not only will you lose points, opposing counsel may be judging you one day.
- Do not berate  or discriminate against clients as you are an advocate on your paying or appointed client’s behalf.
- 	RPC 2-400(B): “In the management or operation of a law practice, a member shall not unlawfully discriminate . . . on the basis of race, national origin, sex, sexual orientation, religion, age or disability in:
- 	(1) hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or (2) accepting ot terminating representation of any client.”

## E

- Eagerly and earnestly give legal advice/assistance to other attorneys who may appear during the same time you are in court and appear to be struggling or need help. Remember that was probably you one day.

## F

- Find the time to watch other experienced attorneys in action. You will pick up pointers (good or bad) to make your appearances smoother and learn to avoid making future mistakes.

## G

- Gum chewing is very unprofessional. Same advice goes for having other objects in your mouth when addressing the judge in court, such as breath mints or throat lozenges

## H

- Have your dates ready when asking for a continuance or for a case to trail. It is helpful to check with opposing counsel as well as the court clerk in advance of the case being called to make sure the dates are convenient for everyone before going on the record.
- Humor goes a long way and you should use it when appropriate.

## I

- If you don’t know how to do a particular appearance or motion, just ask. There are other knowledgeable attorneys or court staff in the courtroom who will be happy to assist you with any questions.
- It’s your bar card- - - keep it!

## J

- Join your local bar associations and other professional legal groups. Not only will you meet other attorneys with a lot of experience and who may have had similar situations, but you will get good advice that you can use in your law practice.

## K

- Know the local rules where you will be appearing and the nuances of the judge who will be hearing your case. Do your own research on the judge and elicit insight from other attorneys who regularly appear before the and the judge’s clerk.

## L

- Let others who have multiple appearances in other courtrooms go before you if you have the time to spare. They may return the favor some day.

## M

- Make sure you are FAR away from the microphone in the courtroom or podium before making statements to your client or disparaging comments about the judge or opposing counsel.

## N

**Never make representations that you cannot later support. And never misstate the law or facts. It will come back to haunt you. **
- _Bryan v. Bank of America_ (2001) 86 Cal. App.4th 185: A Court of Appeal
- 	may sanction an attorney who misrepresented facts to get a continuance to file an opening brief and for improper motion to recall the remittitur. The attorney concealed from the court that the client was incompetent and unwilling or unable to proceed.
- 	Fink v. Gomez (9th Cir. 2001) 239 F.3d 989, 994” Federal courts have the inherent power to sanction an attorney’s reckless statements of law and fact when coupled with an improper purpose [e.g., an attempt to manipulate proceedings in one case to obtain a tactical advantage in another case].
**Never let opposing counsel make statements that you are doing something unethical without doing something to address the verbal assault. Everything is on the record and you need to address this immediately.**
**Never challenge a judge in front of jurors. You will always lose in the confrontation with the judge and lose points as the jurors look up to the judge and not you**. **Although you must make a record, try to do it at sidebar. (CJP - PC 170.6)**

## O

- Only take cases that you are prepared or experienced to handle. Again seek advice from other experienced counsel for assistance.
- 	RPC 3-110: A lawyer must provide competent legal services. This rule includes a duty to supervise the work of subordinate attorneys, agents, and/pr other employees. (See *Waysman v. State Bar* (1986) 41 Cal.3d 452)
- 	RPC 3-110(B): A lawyer should not accept a case if she lacks the time, skill, and “mental, emotional, and physical ability reasonably necessary for the performance of such service.”
- 	RPC 3-110(C): If a member does not have sufficient learning and skill when the legal services is undertaken, the member may nonetheless perform such services competently by 1) associating with . . . Another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.”

## P

- Please do not hold conversations in the courtroom while court is in session.
- Personal rancor or bitterness against the opposing counsel or judge has no standing or place in the courtroom.
- CAAGC&P Section 9: Discovery
- 	An attorney should remember that vigorous advocacy can be consistent with professional courtesy, and that arguments or conflicts with other counsel should not be personal.

## Q

- Quit arguing with the judge once a ruling has been made. You will never win against the judge, especially with an armed bailiff in the courtroom. Do not interrupt the judge or opposing counsel when they are speaking.
-      CAAGC&P Section 14: Conduct in Court
- 		While appearing before the court, an attorney should address 	all arguments, objections and requests to the court, rather than 	directly to opposing counsel.

## R

- Refer to the judge as “your honor” when he/she is on the bench. It is “judge” when not in session. Respect the judge at all times, even if you disagree with a ruling, in order to avoid sanctions. Do not make any flippant remarks or improper argues that would offend the sensibilities of a reasonable person. This includes statements made in court and out of court.
- “A few french fries short of a happy meal” – Miami Case (See article attached).
- Using vulgar language towards a sitting judicial officer – Michigan Supreme Court issues formal reprimand for lawyer who made ‘vulgar and crude’ comments about three judges on a radio show years ago. (See article attached).

## S

- Stay out of the “well” of the courtroom unless the judge indicates otherwise. Ask the judge permission to approach the bench, a witness or hand documents to the judge.

## T

- Take your time when making your points. The court reporter needs to record** **each word that is spoken and is likely to miss important information if you speak too fast.
- Thank the judge for his or her ruling even if you disagree with the ruling. (It is just polite and may even convince you and the jurors that you really didn’t lose that one).
- CAAGC&P Section 14: Conduct in Court
- 	To promote a positive image of the profession, an attorney should always act respectfully and with dignity in court and assist the court in proper handling of a case.
- 	An attorney’s conduct should avoid disorder or disruption and preserve the right to a fair trial.

## U

- Use your head and not your emotions when making your argument.
- CAAGC&P Section 14: Conduct in Court
- 	An attorney should refrain from conduct that inappropriately demeans another person.
- 	An attorney should make objections for legitimate and good faith reasons, and not for the purpose of harassment or delay.
- 	While appearing in court, an attorney should demonstrate sensitivity to any party, witness or attorney who has requested, or may need, accommodation as a person with physical or mental impairment, so as to foster full and fair access of all persons to the court.

## V

- Verify information about representations your client has made to you before making a statement on the record. This will avoid the appearance of misleading the court and opposing counsel.
- CAAGC&P Section 4: Communications
- 	An attorney should not create a false or misleading record of events, or attribute to an opposing counsel a position not taken.

## W

- Wait until the judge calls the case on the record before you start talking.
- 			 X
- ‘X’tra verbiage is not necessary. Quit while you’re ahead.
- 			 Y
- Your reputation is everything. Guard it wisely. Keep in mind that the legal community is smaller than you think and your reputation as an advocate will follow you for the rest of your legal career. It is easier to keep a good reputation than to repair a bad one.

## Z

- Zealous advocacy is good. Although you are an advocate, you are also an officer of the court. Always practice by the law and not the case.
- CAAGC&P Section 1: Responsibilities to the Justice System
- 	The dignity, decorum and courtesy that have traditionally characterized the courts and legal profession of civilized nations are not empty formalities. They are essential to an atmosphere that promotes justice and to an attorney’s responsibility for the fair administration of justice.