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  1. 1. Fred Hagans Hagans, Burdine, Montgomery & Rustay 3200 Travis, 4th Floor, Houston, TX 77006713.222.2700 ∙ ∙ www.hagans-
  2. 2.  Perceived deterioration of civility in the way lawyers treated each other Perceived loss of respect for the judicial system and the legal profession. Perceived increase in the frequency with which attorneys were misusing or abusing the rules, particularly the discovery rules.
  3. 3. Chairman Justice Eugene Cook Co-Chairmen Committee Fred Hagans Judge Norman Black James ―Blackie‖ Holmes Judge Lamar McCorkle David Keltner Drafting Subcommittee David Burrow Fred Hagans Tom H. Davis Blackie Holmes Dean Frank Newton Judge Norman BlackDean (Former Supreme Court Judge Lamar McCorkle Justice) Charles Barrow David Keltner Bob Sheehy Jim Branton
  4. 4.  Size of the Bar • More attorneys now • Attorneys don‘t all know each other anymore • Harder to be mean spirited to people you know Technology • Can send reams of paperwork without thought • Emails can be sent without review but with abundant anger and vitriol
  5. 5.  Gathering of other  Increase in gamesmanship ―codes‖  Something to kelp modify Vigorous Discussion client‘s expectations War Stories  Move society from ―result Loss of cohesion in the Bar oriented‖ to ―principle Increased Polarization based‖ actions Identification of the  Education of lawyers, guideposts and judiciary and clients characteristics of  Opposing viewpoints professionalism Aspirational v. Ethical Rules
  6. 6.  ―Sterilizing‖ the legal process ―Watering down‖ zealous advocacy Creatingnew standards for sanctions/ malpractice
  7. 7.  Rapid increase in appellate lawyers between 1980s and 1990s – once again, loss of cohesion Though many appellate lawyers believed that appeals were far more dignified and academic than litigation, they were still accustomed to seeing colleagues resort to unprofessional behavior. Fall 1993: Kevin Dubose submits a presents a paper at the Advanced Civil Appellate Practice CLE course, offering suggestions for professionalism
  8. 8. ChairCharles ―Skip‖ Watson CommitteeJustice Eugene CookJustice Ann McClure David Gunn Jessie Amos Steve Tatum Shane Sanders David Hricik Formed in 1995
  9. 9.  Committee looked to the Texas Lawyer‘s Creed and other creeds for guidance. Adopted by the State Bar Board of Directors in 1997 Feb 1, 1999: Supreme Court of Texas and Texas Court of Criminal Appeals adopt the Standards for Appellate Conduct. Texas was the first jurisdiction in the United States to adopt guidelines directed specifically at appellate attorneys.
  10. 10.  Warrilow v. Norell, 791 S.W. 2d 515 (Tex. App.— Corpus Christi 1989, writ denied) • Concurrence condemns lawyer for acting as witness and advocate for his client: “These courts urge our profession to rededicate itself to the practice of law „so we can restore public confidence in our profession, faithfully serve our clients and fulfill our responsibility to the legal system.‟ Id. at 531. The considerable lack of ethical judgment presented in other cases, as well as this one, indicates that this creed appears at a most auspicious time. Neither justice nor our fellow man is served until the principles stated in this creed become the moral fabric that all lawyers war throughout their personal and professional lives.” Id.
  11. 11.  Shaw v. Greater Houston Transportation Company, 791 S.W.2d 204 (Tex. App.—Corpus Christi 1990, no writ) • Corpus Christi Court of Appeals brings attention to the Texas Lawyer‟s Creed and its mandate to be courteous and considerate for both lawyers and judges when the district judge:  Ordered an attorney to “shut up”  Ridiculed one attorney‟s years of experience  Ordered an attorney to pay money to her favorite charity to help a personal friend of the judge in need of an organ transplant  “Informed” the Plaintiff that she was sorry that he was represented by his attorney.  Brought her sick child to the courtroom during two days of trial
  12. 12.  In re Matter of J.B.K., 931 S.W.2d 581 (Tex. App.—El Paso 1996, no writ) • The Court then stated: “The Appellate and Advocacy Section of the State Bar of Texas has become so concerned with the standards [or lack thereof] of ethics and professionalism in the appellate courts that the chair has formulated a committee to draft „standards of conduct for appellate lawyers,‟ an appellate attorney‟s creed similar to the one referenced above. Not only has the chair requested input from the courts, he has announced that each court will be asked to adopt the creed when it is completed.‟ Id. Finally, the Court concluded: “While we owe a duty to the legal system as a whole and to the administration of justice, we are ever mindful that the judiciary also has a duty to the lawyers who appear before them, to the public at large which elects them, and even to other members of the judiciary to ensure that our democracy is preserved and protected and that professionalism reigns supreme. We take this duty seriously. Id. at 584-85 (emphasis added)
  13. 13.  Caldwell v. River Oaks Trust Co., 1996 WL 227520 (Tex. App.—Houston [1st Dist.] 1996, writ denied) • Plaintiff filed a motion to file in excess of 50 pages. The plaintiff‘s 70-page brief contained phrases ―referring to the ROTC as the ‗trustee from hell‘ and describing Marietta Schumacher as a cat torturing a mouse.‖ Id. at *1. In footnote 1, the appellate court stated: ―We note that the Texas Lawyer‘s Creed, adopted by the Texas Supreme Court, urges lawyers to ‗avoid disparaging personal remarks or acrimony toward opposing counsel, parties, and witnesses.‘‖ Id. The court concluding by stating: The brief contained numerous confusing references to unidentified, people, places and events as well as unnecessary argument. Id. Further, ―what the brief does not contain is coherent legal argument.‖ Id. Finally, ―the plaintiff could have briefed his points of error with clarity in 50 pages or less if he had not sacrificed legal analysis in favor of hyperbole.‖ Id
  14. 14.  Bullard v. Chrysler Corp., 925 F. Supp. 1180 (E.D. Tex. 1996) • Plaintiff‟s attorney in a products liability case against Chrysler moves to withdraw as counsel. Id. at 1183. He has extensive experience representing plaintiffs against automobile manufacturers. Id. at 1182. Plaintiff argues that she will be prejudiced. Id. at 1183. It emerges that his reason for withdrawing is that Chrysler threatened not to settle any other case, forcing all of them to trial and decreasing his profit margin. Id. The Court, referring to Article II of the Texas Lawyer‟s Creed and the Texas Disciplinary Rules of Professional Conduct, strongly chastised counsel for showing more allegiance to Chrysler than his own clients, for his shifty and evasive demeanor and appearance, and for his lack of candor in falsely representing to the Court that his client would not be prejudiced. Id. at 1184-8.
  15. 15.  ―Morality is simply the attitude we adopt toward people whom we personally dislike.‖ -Oscar Wilde ―Without civic morality, communities perish; without personal morality, their survival has no value.‖ -Bertrand Russell
  16. 16.  ―Ethicsis knowing the difference between what you have a right to do and what is the right thing to do.‖ – Potter Stewart ―There ain‘t no right way to do the wrong thing.‖ – Waylon Jennings
  17. 17.  Some say: • Ethics is what you have to do. • Morality is what you should do. Others say: • Ethics is the lowest standard of permissible conduct. • Morality is the highest standard of conduct, to which we should aspire
  18. 18. ―Ethical conduct can be codified, butprofessionalism must come from withinthe lawyer. A lawyer can be ethical but not professional.‖ James H. ―Blackie‖ Holmes
  19. 19. Civility has been said to be synonymous with professionalism One with ―conduct demonstrating civility, honesty, integrity, character, fairness, competence, ethical conduct, public service, and respect for the rule of law, the courts, clients, other lawyers, and unrepresented parties.‖ • New Mexico Commission on Professionalism ―Professionalism is grounded in aspirational goals and traditions that seek to encourage the bar and bench towards conduct that preserves and strengthens the dignity, honor and integrity of the law profession.‖ • New Jersey Commission on Professionalism in the Law
  20. 20. Mentor Referee Role Model Agenda-OrientedProtector of Process
  21. 21.  Occupationally related social knowledge available, against a institutions established and background of principles and maintained as a means of theories, and within the context providing essential services to of possible impact on other the individual and the society. related conditions or decisions. Each profession is concerned  The profession is based on one with an identified area of need or more underlying disciplines or function. from which it builds its own The profession collectively, and applied knowledge and skills. the professional individually,  The profession is organized into possesses a body of knowledge one or more professional and a repertoire of behavior associations, which, within and skills. broad limits of social Members of the profession are accountability, are granted involved in decision making in autonomy in control of the the service of the client, and actual work of the profession these decisions are made in and the conditions that accordance with the mot valid surround it.
  22. 22.  The profession has agreed-upon commitment to competence. performance standards for  Authority to practice in an admission to the profession and for individual case derives from the continuance with it. client or the employing Preparation for and induction into organization; accountability for the the profession is provided through competence of the professional a protracted preparation program, practice with the particular case is usually in a professional school or a to the profession itself. college or university campus.  There is a relative freedom from There is a high level of public trust direct-on-the-job supervision and and confidences in the profession from direct public evaluation of the and in individual practitioners, individual practitioner. The based upon the profession‘s professional accepts responsibility demonstrated capacity to provide in the name of his or her profession service markedly beyond that and is accountable through his or which would otherwise be her profession to the society. available. Individual practitioners are -Bob Kizlik, Characteristics of a characterized by a strong service Profession motivation and lifetime
  23. 23.  ―a duty of a public service of which emolument is a by- product, and in which one may attain the highest eminence without making much money‖ ―a relation as officer of the court to the administration of justice involving thorough sincerity, integrity and reliability‖ ―a relation to client in the highest degree of fiduciary,‖ and ― a relation to colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice or dealing directly with their clients.‖-Characterisctics of the legal profession which distinguish it from business,
  24. 24. EthicsFame and fortune
  25. 25. Sophistry Plausible but fallacious argumentSophist A scholar or thinker, especially one skilled in devious argumentationSophistry Derived from the name accord to a group of professional educators and lecturers in ancient Greece who turned their attention away from science and philosophy to rhetoric, politics and the law. This group introduced the adversary system and trained its students to argue both sides of cases.
  26. 26. It is often argued that full representation of the client justifiesthe use of any device to win the case, including argument tocourt and jury that the lawyer knows to be false. Because adefendant has a right to testify, we are told that the lawyershould protect that right even at the risk of false testimony.Only the fact-finder is supposed to safeguard againstperjury. Only the judge and jury are to be concerned withtruth. The glory of the adversary system is to arm theadvocate with any weapon that may succeed.Humbug! Balderdash!Who will respect a profession that aspires to deceive andpretends that its system doe justice by choosing the bestliar?
  27. 27. There is a vague popular belief that lawyers arenecessarily dishonest. I say vague, because when weconsider to what extent confidence and honors arerepose in and conferred upon lawyers by the people,it appears improbable that their impression ofdishonesty is very distinct and vivid. Yet theimpression is common, almost universal. Let no manchoosing law for a calling for a moment yield to thepopular belief---resolve to be honest at all events;and if in your own judgment you cannot be an honestlawyer, then resolve to be honest without being alawyer. Choose some other occupation, rather thanone in the choosing of which you do, in advance,consent to be a knave.
  28. 28. A lawyer sits in the lofty position of makingdecisions over peoples lives. If he begins to do itwithout real thought or does it routinely,callously, and without regard to theconsequences of his actions, then he is unworthyof the trust placed in him and is no lawyer--indeed, he is no advocate and should think aboutanother line of endeavor: used car salesman ordoctor. A lawyer cannot fight for his client if he isunconcerned, and striving for your client is theonly reason we are allowed to be advocates.
  29. 29. Lawyers are supposed to be the custodians of acommunitys legal and ethical sense. To a significantextent, both the loss of self respect within theprofession and the loss of public respect for lawyersreflect the failure of our schools to convey to the youngwhat law and lawyers have meant in the history of thiscountry. If the profession wishes to retain its privileges,lawyers--even above others--must understand why theyhave been granted exclusive access to the judicialprocesses of government, and why the public has theright to expect that lawyers will be vigilant inprotecting not only the interests of their clients, but alsothe rule of law that protects us all.
  30. 30.  The lawyer is hired to defend a physician without assets or insurance in a medical malpractice case naming the physician and the hospital at which the alleged malpractice occurred as defendants. The hospital obtains a summary judgment, which leaves the physician as the lone defendant. Shortly before trial, plaintiff‘s counsel approached the physician‘s lawyer and offers to give the physician (the only remaining defendant) a covenant not to execute in exchange for the physician‘s in a full-blown jury trial. The physician‘s lawyer is told that the purpose of this agreement is to use the trial to educate the judge so that he may reconsider his grant of summary judgment in favor of the hospital. The trial court is not informed of this agreement. Does this constitute professional misconduct?
  31. 31. In In the matter of Richard A. Alcorn, 41P.3d 600 (Ariz. 2002), the ArizonaSupreme Court held that the precedingscenario constituted a ―sham‖ trial andthe associated misleading of the trialjudge was professional misconduct andconstituted several ―serious violations ofduty.‖ Id. at 612
  32. 32.  Yourepresent an investor with claims against his broker and others. You must proceed in arbitration which does not allow depositions Can you enter into an agreement to file suit to obtain the depositions?
  33. 33. (a) A lawyer shall not: (1) make a false statement of material fact or law to a tribunal (2) fail to disclose to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act…
  34. 34. (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person
  35. 35.  The trial court held: • ―The lawsuit was filed for the sole purpose of attempting to secure the deposition of [the deponent]; • The lawsuit and issuance of the subpoena constituted a ―fraudulent filing‖ with the court; • [The attorney] knowingly made a false statement of material fact or law to the Court by failing to disclose a material fact to the Court when disclosure of such fact is necessary [TDRCP 3.03(a)]; • [The attorney] used improper methods of attempting to obtain evidence that violate [the deponent‘s] legal rights; and • [The] lawsuit was subterfuge.‖
  36. 36.  The appeals court held: • ―The litigation was filed as if it were seeking a remedy in the same controversy involving the pending arbitration, and because this was done knowingly, it constitutes bad faith. Improper motive is an essential element of bad faith. An improper motive is shown by the attempt to use the judiciary for discovery by knowingly filing a lawsuit pretending to seek resolution of a controversy when the suit was not filed for that purpose.‖ Wallace v. Investment Advisors, Inc., 960 S.W.2d 885, 889 (Tex. App.—Texarkana 1997, writ denied)
  37. 37. The attorney for the investor waspersonally sanctioned and required topay the amount of attorneys‘ fees andcosts expended by the deponent inconnection with the lawsuit
  38. 38.  In a complex, multi-party case, an onerous docket control order is entered in a case in which you client has real exposure. You conclude that under the docket control order you‘re client‘s defense will be prejudiced. You know that there is case law stating that docket control orders are not subject to mandamus review, but you believe that an appeals court would provide relief if you could just get the story to them. You draft a petition for mandamus that omits any reference to the case law that appears to bar mandamus review. Is that ok?
  39. 39. (a) A lawyer shall not knowingly (1) make a false statement of material fact or law to a tribunal … (4) Fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
  40. 40.  ―Relators completely ignore [the decision] in their filings in this Court, although filing a thirty-seven page brief containing three pages of authorities in the index. Relators did not attempt to explain or distinguish this controlling authority, nor mention [the case] might be considered to be contrary to their position.‖ ―Such failure to disclose pertinent adverse authority might well be a failure of Relators to deal in good faith with this Court and a breach of professional ethics.‖ The Relators were ordered to show cause why they should not be sanctioned for not acting in good faith by failing to cite the case.
  41. 41.  A friend calls from Court asking you to check on the status of his motion for leave to file bankruptcy protection. The friend had previously filed several bankruptcy petitions, which had been dismissed, and was ordered not to file again without leave. You call the bankruptcy clerk, who says there is something ―strange about the file.‖ it appears to have been reopened but is not sure if the stay is in effect. You then ask a bankruptcy specialist what to do, and are told to ―check the file.‖ You don‘t check the file and fax a letter to the trial judge in your friend‘s civil case stating the clerk told you the case had been reopened. The trial court grants a continuance in your friend‘s case. The bankruptcy court calls you later in the day stating that the case has not been reopened. Should you notify the trial court to whom you sent the earlier fax?
  42. 42. (a) A lawyer shall not: (1) make a false statement of material fact or law to a tribunal (2) fail to disclose to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act …(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.Comment 14: The time limit on the obligation to rectify the presentation of false testimony or other evidence varies from case to case but continues as long as there is a reasonable possibility of taking corrective legal actions before a tribunal.
  43. 43.  Cohn v. Commission for Lawyer Discipline, 979 S.W. 2d 694 (Tex. App.—Houston [14th Dist.] 1998)(No. 14-97-00678-CV), rehearing overruled (Oct 22, 1998) • Under the disciplinary rules, a person‘s knowledge may be inferred from circumstances. The court held that Cohn knowingly failed to disclose a material fact to the Court and that the misrepresentations were made knowingly in violation of Rule 3.02(a)(1). • The Court also held that Cohn failed to let the Court know when he knew that the information was not accurate in violation of 3.03© and Comment 14 to Rule 3.03. The six month probated suspension against Cohn was affirmed.
  44. 44.  Satire directed at Socrates and lawyers Depicts Socrates as a Sophist, ―paid to teach his students the art of contentious argument based on ridiculous argument.‖ ―The technique of winning lawsuits is to overcome the truth by telling lies.‖ ―Lawyers make a mockery of all morality, systematically confounding good with evil and evil with good.‖ ―Sophistry – the rational power of prose and formal logic‖ -Robert Gaudet, Jr., Lawyer-Bashing in the Western Tradition: 350 BC to 1992 BC
  45. 45.  ―His whole life has been one continued insult to good manners and to decency.‖ – John Adams of Benjamin Franklin ―The bastard brat of a Scotch pedlar.‖ – John Adams of Alexander Hamilton He has ―a superabundance of secretions which he could not find whores enough to draw off.‖ – John Adams of Alexander Hamilton ―The man is more mad than ever I thought him and I shall soon be led to say as wicked as he is mad.‖ – Alexander Hamilton of John Adams ―He is not scrupulous about the means of success, not very mindful of truth and…he is a contemptible hypocrite.‖ – Alexander Hamilton of Thomas Jefferson ―Necessity knows no law; I know come attorneys of the same.‖ – Benjamin Franklin, Poor Richard‘s Almanack (1734)
  46. 46.  And behold, a lawyer stood up to put him to the test, saying, ―Teacher, what shall I do to inherit eternal life?‖ He said to him, ―What is written in the Law? How do you read it?‖ And he answered, ―You shall love the Lord your God with all your heart and with all your soul and with all your strength and with all your mind, and your neighbor as yourself.‖ And he said to him, ―You have answered correctly; do this, and you will live.‖ But he, desiring to justify himself, said to Jesus, ―And who is my neighbor?‖ Luke 10:25-37 There are six things that the Lord hates, seven that are an abomination to him: haughty eyes, a lying tongue, and hands that shed innocent blood, a heart that devises wicked plans, feet that make haste to run to evil, a false witness who breathes out lies, and one who sows discord among brothers. Proverbs 6:16-19 No one enters suit justly; no one goes to law honestly; they rely on empty pleas, they speak lies, they conceive mischief and give birth to iniquity. Isaiah 59:4
  47. 47.  Pettifoggery – coined in the 16th century, refers to the unscrupulous practice of law. ―They overcharged clients, fomented disputes for personal gain, claimed fees from both parties in a lawsuit, and helped themselves at all costs. Curiously enough, the pettifogger closely matches our stereotypical greedy corporate lawyer.‖ – Robert Gaudet, Jr., Lawyer- Bashing in the Western Tradition: 350 BC to 1992 BC The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape. – Ralph Waldo Emerson (1803-1882) I think we may classify the lawyer in the natural history of monsters. – John Keats (1819) I dont think you can make a lawyer honest by an act of legislature. Youve got to work on his conscience. And his lack of conscience is what makes him a lawyer. – Will Rogers (1927)
  48. 48. Thank You! The Texas Lawyer‘s Creed: A Twenty Year Retrospective Fred Hagans Hagans, Burdine, Montgomery & Rustay 3200 Travis, 4th Floor, Houston, TX 77006713.222.2700 ∙ ∙