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    Dolores Dorsainvil
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When Zealous Representation Goes Wrong – A Look at the Rules on Litigation Ethics

Hiring an attorney is often the last resort for a person with some type of dispute with against another. Whether it be a criminal or civil matter, in a state or federal court, an administrative matter, a mediation or arbitration, attorneys are hired, and, expected to represent the best interest of their clients at all times. The ethical Rules of the legal profession demands it. However, attorneys also have conflicting duties. On one hand, although they are expected to fiercely represent their client’s interests, they also, as officers of the court, have duties to the court, adversaries, and third parties.  Attorneys are limited by the Rules of Professional Conduct which are to provide guidance on how these representations should occur. The same Rules that require zealous representation of a client’s legal issue also imposes significant, but important, limitations on the manner of that representation.  Some abusive litigation tactics include asserting non-meritorious claims, providing false evidence to the court, using improper means in gathering evidence, engaging in communications with represented parties, and unlawfully obstructing an opposing party’s access to evidence or witnesses.    This is not an exhaustive list or discussion of all of an attorney’s ethical obligations during litigation, but it serves as a primer on these Rules and provides guidance on how they should be observed.

The Preamble to the Maryland Lawyers’ Rules of Professional Conduct (hereinafter “the Rules”) make it clear that, “as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”[1] However, Comment 9 of the Preamble demonstrates the inherent conflict that exists in the Rules:

“In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Maryland Lawyers’ Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”[2]

As the Preamble demonstrates, attorneys do not have the option of utilizing any and every tactic at their disposal in their efforts to represent their clients zealously. The “by any means necessary” mantra does not apply. Instead, attorneys have to be mindful of other ethical obligations to the court, opposing counsel, and sometimes their own interests.   Articles 3 and 4 of the Rules speak directly to the lawyer’s ability to represent her clients.

Article 3 of the Rules limits the lawyer’s behavior as an advocate. It details the expected behavior when initiating litigation[3], prosecuting or defending the matter[4], making representations to the court on behalf of clients[5], communication and dealings with opposing counsel[6], and communicating with the trier of fact[7]. These Rules are critical to maintaining the reputation of the profession as they serve to ensure to the public that as advocates for their clients, lawyers will do so in a way that is honest and trustworthy, and will not knowingly resort to misrepresentation and deceit to obtain a favorable result for their client.

Similarly, Article 4 of the Rules seeks to maintain the integrity of the profession but extends the requirement of truthful communications beyond the attorney-client relationship. Specifically, the Rules seek to guide the lawyer on appropriate behavior while advocating for their client and dealing with non-lawyers or a trier of fact. The Rules guide the lawyer on communication to third parties while representing their clients[8], communication with those who are represented by counsel[9], how to interact with unrepresented individuals[10], and requiring the lawyer to respect the rights of individuals[11]. The Rules delineated in Article 3 seek to prevent a lawyer from gaining an unfair advantage in litigation by misrepresenting the facts or bullying non-lawyers and the unrepresented. Especially by dishonest means such as fraud, deceit or misrepresentation.

It is well established and generally understood that a lawyer is expected to be truthful at all times. Comment 2 of the Preamble recognizes that “as [a] negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”[12] These “honest dealings” are critical to ensure that the judicial system works and the Rules identify when this honesty is not only expected, but required, in Rules 3.3, 4.1 and 4.2. Each Rule is briefly discussed below.

Under Rule 3.3, a lawyer must show candor toward the tribunal. Specifically, the Rule states that a lawyer shall not knowingly: 1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 2) fail to disclose to the tribunal legal 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; or 3) offer evidence that the lawyer knows to be false.”[13] In other words, a lawyer is prohibited from knowingly lying to the court or anyone else. And when a lawyer discovers that a communication to the court is untrue, the lawyer needs to correct the statement. Even if the statement and the correction are at odds with his client’s interests.

Rule 4.1 of the Rules prevents a lawyer from “knowingly make a false statement of material fact or law to a third person or failing “to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client[14] As a result, the Rules also bar lawyers from using misleading anyone when representing the interests of her client. Furthermore protecting the integrity of the profession, the Rule also prohibits a lawyer from assisting clients commit any crime, or scheme that involves dishonesty.

Finally, Rule 4.2 prevents a lawyer from “communicat[ing] about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has consent of the other lawyer or is authorized to do so by law or court order.”[15] The purpose of this Rule is to prevent the overzealous lawyer from improperly gaining a competitive advantage by direct communication with an unrepresented party who without the assistance of their counsel, may unknowingly, speak against their own interest.

These select Rules are designed to guide lawyers on the appropriate methods of zealous representation. Or at a minimum, these Rules can also define the appropriate boundaries. Stepping outside of these boundaries can, and, will lead to significant negative consequences for not only the lawyer but her client as well.

Rule Enforcement: Court Action, The Disciplinary Process, and Mixter

So what happens when a lawyer violates the Rules discussed above or any of the Rules while representing a client during litigation? There are two modes of enforcement:  judicial action which is addressed by the court during the course of the underlying litigation or action during the disciplinary process.

During litigation, judges have broad discretion in dealing with lawyers who behave badly. If the court finds that a lawyer has violated the Rules the court can: 1) hold the lawyer in contempt of court, 2) limit the scope of the litigation, 3) bar the admission of certain evidence, 4) shorten litigation timelines, or impose economic or other sanctions upon the offending lawyer. These can be imposed sua sponte by the court or at the request of opposing counsel.  Any of these actions should put any lawyer on notice that their behavior is inappropriate and should be discontinued.  Additionally, depending on the sanction, the action could in fact jeopardize the interest of the client the lawyer was advocating for in the first place.

A lawyer may face enforcement by both the courts and the disciplinary agency.  In February 2015, the Court of Appeals of Maryland, in the matter styled Attorney Grievance Commission of Maryland v. Mixter, found that disbarment was the appropriate sanction for an attorney who made copious knowing and intentional representations to courts, parties and witnesses, and determined that such intentional misrepresentation demonstrated a lack of truthfulness and honesty which is prejudicial to the administration of justice and brings disrepute to the legal profession.[16]  The Court held that Mixter made “hundreds of misrepresentations without remorse or attempt to rectify his transgressions and found that he violated several of the Rules.[17]  The Court found that Mixter violated several of the Article 3 and Article 4 Rules outlined above. Specifically, the Court found Mixter in violation of Rules 3.2, 3.3, 3.4, 4.1 and 4.4 in addition to Rules 5.3, 8.1, and 8.4[18] The Court found that Mixter knowingly misrepresented facts to the court and failed to correct them by repeatedly representing 1) that “out-of-state witnesses are subject to the jurisdiction of Maryland courts”, 2) that valid subpoenas were issued and properly served”, the actual dates that service was made 3) that he had “made good faith efforts to resolve discovery attempts prior to filing motions”, and 4) that opposing parties or non-party witnesses had refused to respond to his efforts”.[19]  The Court found that these violations were not isolated to one case and that they happened on dozens of occasions.  The Court reasoned that Mixter “knew that he was making misrepresentations to numerous courts, parties and witnesses” and therefore violated the Rules.

The Court found similar acts of improper and overzealous representation on the part of Mixter in their 153 page opinion.  Although disbarment is rare for a single act that leads to finding of a violation of an Article 3 or Article 4 violation, lawyers should understand that practices such as these not only bring disrepute to the legal profession, but depending on the action taking by the trial courts, could derail their client’s case and can have serious consequences. Although every lawyer wants to zealously represent their clients, it must be done in a matter that is consistent with the Rules and their obligations as an officer of the Court.

 

[1] Comment [2] to the Preamble of the Maryland Lawyers’ Rules of Professional Conduct.

[2] Comment [9] to the Preamble of the Rules.

[3] Conduct Rule 3.1 Meritorious Claims and Contentions.

[4] Rule 3.2 Expediting Litigation.

[5] Rule 3.3 Candor Toward the Tribunal.

[6] Rule 3.4 Fairness to Opposing Party and Counsel.

[7] Rule 3.5 Impartiality and Decorum of the Tribunal.

[8] Rule 4.1 Truthfulness in Statements to Others.

[9] Rule 4.2 Communication with Person Represented by Counsel.

[10] Rule 4.3 Dealing with Unrepresented Person.

[11] Rule 4.4 Respect for Rights of Third Persons.

[12] Comment [2] to the Preamble of the Rules.

[13] Rule 3.3 Candor Toward the Tribunal.

[14] Rule 4.1 Truthfulness in Statements to Others.

[15] Rule 4.2 Transactions With Persons Other Than Clients.

[16] Attorney Grievance Commission of Maryland v. Mixter, Misc. Docket AG No. 7, Sept. Term, 2013. TDR No. 15-0202-20.

[17] Id.

[18] Id.

[19] Id.

Update on the ABA's Ethics 20/20 Commission

The American Bar Association’s Commission on Ethics 20/20, the group commissioned in 2009 by then ABA President Carolyn B. Lamm, to thoroughly review the ABA Model Rules of Professional Conduct and to make necessary recommendations to revise those rules as they apply to the evolution of the legal profession as it relates to advances in technology and the globalization of the practice, has concluded its work and has made significant recommendations for revisions to the Model Rules.

The ABA Commission on Ethics 20/20 met at the ABA 2013 Mid-year meeting in Dallas, Texas in early February and the Commission successfully rallied support for sponsorship for four of its Resolutions (including support from the Young Lawyers Division for the Resolutions involving foreign lawyers).  As a result of the support as evidenced by several co-sponsorships, the ABA House of Delegates on February 11, 2013, adopted all four of the Commission’s final Resolutions. Three of those Resolutions involved a highly controversial issue – the limited practice authority for inbound foreign lawyers to practice in the United States.  The Resolutions are:

Resolution Revised 107A now amends Rule 5.5(d) of the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to permit foreign lawyers to serve as in-house counsel in the U.S., but with the added requirement that foreign lawyers not advise on U.S. law except in consultation with a U.S.-licensed lawyer;

Resolution Revised 107B now amends the ABA Model Rule for Registration of In-House Counsel to permit foreign lawyers to serve as in-house counsel in the U.S. but with added requirements ;

Resolution 107C now amends the ABA Model Rule on Pro Hac Vice Admission to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in U.S. courts; and

Resolution 107D amends the Comment to ABA Model Rule 8.5 to permit lawyers and clients to agree which conflict of interest rules govern the representation.

Congratulations to the Commission for three years of hard work which resulted in phenomenal changes to the rules which governs our conduct. The Commission, in its earlier Resolutions to the House which are now adopted as of August 2012, recommended several changes as they relate to technology and now has addressed the globalization of the practice which will now allow for lawyers to provide more services to clients whose needs may not be limited to our jurisdictional borders.

How does this effect Maryland? We shall soon see if our court adopts similar provisions in the Maryland Lawyers’ Rule of Professional Conduct.

Read more about the work of the Commission on the ABA website.

Dolores Dorsainvil is a Senior Staff Attorney at the Office of Bar Counsel and is an Adjunct Professor of Law at American University’s Washington College of Law where she teaches Legal Ethics.

What is Professionalism?

Last week I had the privilege of being this year’s recipient of the Edward Shea Professionalism Award given by the Maryland Bar Foundation. The award, created in 1996, was named in honor of Baltimore attorney and past president of the Maryland State Bar Association (MSBA), the late Edward F. Shea, Jr. The award recognizes a MSBA young lawyer who exemplifies the professionalism, civility, integrity, compassion, and commitment to public service embodied by Mr. Shea throughout his career. What an enormous honor! 🙂 In my acceptance speech I talked about what professionalism means to me and how my views of professionalism have been shaped by my work in the MSBA and my experiences with so many of my esteemed colleagues who have exhibited an admirable dedication to our profession through their work in the bar. Here are a few excerpts of my speech that I believe accurately reflect what professionalism means to me:

This award means so much to me because it is such a great honor to serve my profession, and also a real blessing when others recognize my efforts.

As you know, as lawyers we perform many different functions – we are advocates, we are counselors, we are negotiators, and we are conciliators. But perhaps our most significant role is that as members of the legal system, we are officers of the court. As officers, we have a special responsibility to our legal system. Our profession has been granted the power of self-regulation. We are part of an industry where the rules are made by lawyers, enforced by lawyers, and ultimately interpreted and decided by lawyers. It is essential that our profession maintain our ability of self-governance and not be influenced by government entities that may be driven by public opinion or popular issues of the day. Lawyers must demonstrate that we are capable of self-regulation in order to maintain the public’s confidence in the system. How do we do that you ask?

We have the responsibility of making sure that our conduct as lawyers comports with our requirements under the Maryland Lawyers Rules of Professional Conduct. Adherence to these Rules assists us in maintaining a positive public perception of our legal system and further ensures civility and confidence in the legal process. As a legal community we should expect members of our profession to reflect the highest integrity that that we should also expect of ourselves. Neglect of any of these responsibilities would compromise the autonomy that we have enjoyed as well as the public interest which it serves.

Being a lawyer is one of my greatest accomplishments. And being a lawyer means more to me than just completing the work for which I get paid. It is about committing to the values that I swore to uphold. We must all continue in the path and follow in the footsteps of individuals like Mr. Edward Shea, also known as the “Father of Professionalism,” a man who made remarkable contributions to our bar and several others like him by rededicating ourselves to those values, principles, and ideals that we cherish.

Thank you……from the bottom of my heart.

Keep the Maryland Professional Code of Conduct right at your fingertips! Download the FREE MSBA App for iPhone, Android and Blackberry.

Former Drinker Biddle Partner Disbarred for Falsifying D.C. Bar Application

The Maryland Court of Appeals disbarred Darlene H. Smith, a former partner in the Washington D.C. law firm of  Drinker Biddle & Reath for altering documents as part of her application for admission to the D.C. Bar. The court’s opinion was released on Monday, March 19, 2012, and can be found at http://mdcourts.gov/opinions/coa/2012/10a11ag.pdf.

Ms. Smith was admitted to the Maryland bar in 1997 and was admitted to practice before the U.S. District Court for the District of Columbia, but was never a member of the D.C. Bar.  Smith initially worked as a judicial clerk for the Chief Judge of the District of Columbia Court of Appeals.  She subsequently practiced law at a number of firms in the District of Columbia and Maryland, including as a solo practitioner, before she joined the firm of Drinker Biddle & Reath in December 2008 as a partner in the labor and employment practice group.  Although Smith had practiced law for over 10 years, she had never sought admission to the D.C. bar until January 2009, when she formally applied for admission. Under D.C.local rules, she was allowed to practice in the District of Columbia federal court as long as she made certain disclosures that her practice was limited to the federal court and Maryland courts only. She was also allowed to practice for a year in D.C. under the supervision of a D.C. licensed attorney, assuming she applied to the D.C. Bar within 90 days of starting her practice in the District.

When asked by the Committee on Admissions, whether she had complied with the requirements of D.C. Rule 49 regarding notice to the public, Smith stated that she did and submitted to the Committee on Admissions altered documents such as business cards, promotional materials and letterhead from her firm, of Drinker Biddle & Reath, as well as three of her previous law firms’ letterhead, spanning a decade, that included legends stating that she had been admitted only in Maryland and that she limited herself to federal practice. These disclosures did not appear on the original versions of those documents and were altered by Smith shortly before she submitted them to the Admissions Committee.

Maryland Court of Appeals Judge Robert McDonald wrote in the court’s opinion that Smith’s actions involved “dishonesty, fraud, deceit, and misrepresentation.”  “The obstruction of a bar inquiry through the submission of fabricated evidence by an experienced member of the bar is an instance of dishonesty that incorporates a number of factors that we have deemed aggravating,” McDonald wrote.  Noting that Smith’s misconduct was a detailed scheme involving fraud, Judge McDonald wrote, “[t]he nature of the violation, coupled with the aggravating factors, makes disbarment appropriate.”

New Year, New You

2012 is already off to a running start. If you are like most, you have probably spent a good deal of time last year and the beginning part of this year thinking about ways to be a better person but more specifically, a better lawyer. Here is a quick list of things that can help you in your quest to develop your practice and remain ethical:

1)      Read the latest Court of Appeals opinions on disciplinary matters. The best way to understand the trends of our profession (cases prosecuted as well as types of misconduct) is to look at some of the attorney disciplinary cases. These opinions are important because the Court will oftentimes send a message to the Bar that a common practice may not comport with a lawyer’s obligation under the ethical rules. Go to www. Mdcourts.gov to find the latest opinions.

2)      Keep up with professional reading. With all that a busy practitioner must do in a day, oftentimes it seems like a hurdle to do any additional reading other that what is required for a case. However, the best way to get educated about our profession as well as landmark national cases is to read a bar journal. An easy way to ensure that these don’t pile up on your desk is to take fifteen minutes at the end of your day and quickly go through articles that are relevant. An easier way to keep up with your professional reading is to subscribe to an on-line journal that can provide information in easy to read format.

3)      Read the Rules of Professional Conduct. What better way to understand what is required of you then to go to the rules themselves? Unless you are an ethics lawyer, no lawyer should memorize the rules but at the very least, you should refer to them often. If you have not already done so, subscribe to the free mobile app offered through MSBA which offers you the Rules of Professional Conduct at your fingertips.  The app is available for free on these platforms: iPhone & iPad, Android and Blackberry.

4)      Get organized! What better way to clear your head and be more productive than to clear the clutter off of your desk. If you have a habit of procrastinating or if you suffer from avoidance syndrome (not wanting to deal with a case that is more complicated than you originally thought) and have stacks of cases sitting in piles in your office, take some time to go through each file carefully and assess what needs to get done to accomplish the client’s objectives. If you find that you are in over your head and are not able to competently handle a matter, inform the client and/or obtain co-counsel (with your client’s consent).

5)      If you are faced with an ethical quandary and are not sure where to go, after referring to the Rules of Professional Conduct call the MSBA Ethics Hotline and speak to one of their volunteer attorneys for further guidance. If you would like a written opinion, you can request so from the Ethics Committee.

6)      Get involved! Join a local or specialty bar association. Increasing your network of attorneys who share the same interests can certainly help you especially if you find that you need a mentor or another attorney to share ideas with.

7)      Take a Continuing Legal Education seminar. It is always a good idea to remain proficient in your practice area and to learn about new law, trends, and technology as it relates to your practice. The MSBA and Pro Bono Resource Center of Maryland, Inc. are offering free and discounted slots for a selection of MSBA CLE courses. For a listing of eligible courses and to register, visit http://probonomd.org/continuing-legal-education.

8)      Take care of your health. Lawyers seem to be the most depressed people in this country. If you, or someone you know, is experiencing issues with mental health, anxiety, depression, alcohol, or substance abuse, contact the MSBA’s Lawyers Assistance Program. Lawyer Assistance Program (LAP) is a free, confidential, non-profit counseling program that assists judges, lawyers, law students, legal staff and their families who experience personal problems that interfere with their personal lives or their ability to serve as counsel or officers of the court.

9)      Have a good reference book in your library. Some personal favorites like The ABA/BNA Lawyer’s Manual on Professional Conduct and The Law of Lawyering by Geoffrey Hazard, Jr. & William Hodes are invaluable resources for a practitioner.

10)  Live a balanced life. There is more to life than work so make sure to take the time to cultivate your outside interests and personal relationships.

While this list is certainly not exhaustive, hopefully it helps you with ideas on how to be the best you.

Our Responsibility

A new post by my contributing blogger and colleague, Joe Perry:

The bloggers have declared war.

I found law school to be a mostly nasty place, so it’s hardly surprising to me that law school administrations—nefarious collectives charged with reducing once-beautiful human beings to soulless, precedent-regurgitating automatons—are capable of fudging numbers.  For many, however, this bending, manipulating and outright fabrication of employment figures has been the equivalent of the legal education system crossing the Rubicon.  And in response, the internet is now littered with websites exposing and lambasting the “law school admissions scam.”[1]

Several years ago, like so many others, I took my marching orders from U.S. News and World Report.  With two distinct options on the table, I selected the law school highest on the list without so much as a second thought.  And I made that selection without knowing that the numbers that got my school that ranking may or may not have been massaged.

Now, that doesn’t make me mad enough to start a protest website, but there’s good reason I’m not bitter.  Had I gone for option #2, I would have gone to school in a different part of the country, and would have never met my wife.  In essence, I paid six figures for the chance to bump into the woman of my dreams at a nightclub.  I’d do it all again, of course—even if I knew my choice was being made on fabricated employment data, but that’s one expensive first date.

And that’s partly the point.  Where to attend law school is an expensive decision, and the fact that applicants’ money might be extracted under false pretenses serves to justify all the rage against the machine currently found online.  For those bloggers and discontents truly devoted to changing the system and preventing others from making ill-informed choices, I have a serious respect.  They are shining a spotlight, and it would be foolish to believe that the spotlight hasn’t helped motivate change.[2]

But there’s even more to it than the money angle.  The same institutions that are being accused of taking money under false pretenses are also the ones charged with educating future lawyers about ethics.  This is a lot like your mother scolding you to stay away from sweets while she shovels cupcakes into her mouth.

Such hypocrisy—even the perception of such hypocrisy—creates a serious obligation for any attorney aware of the problem, regardless of whether they have ever personally felt wronged by the system.  Every day, there are newly-minted lawyers out there desperately searching for employment and/or trapped in employment they despise.  And many might rightfully feel bamboozled by the system, having paid particular attention to employment statistics when applying to law school just a few years before.

For those of us who have been in the trenches for a few years now, it is our job to pick up the ball where our legal education institutions have dropped it.  We are obligated to impress upon the newest members of our community that while it appears some law schools can have their cake and eat it too, we cannot.

No matter how rough it gets out there, we need to convey to new attorneys that our conduct is governed by ethics rules and codes.  We need to convey this message even when some of the very people charged with teaching those rules are making a mockery of them.

If law schools are dropping the ball, we, as mentors, are all that’s left.

Joe Perry is a Senior Staff Attorney with the D.C. Office of Bar Counsel.  He can be contacted at perryj@dcobc.org.


[2]           See, e.g., Sloan, K., ABA gives ground on law schools’ graduate jobs data reporting, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202534457162&slreturn=1 (detailing changes in the manner the ABA will collect graduate data in the future)


Looking for a mentor? MSBA members have access to a Mentoring Program.

Looking for a step in the right direction? Check out MSBA’s Legal Career Center, or this recent article by Pat Yevics: Legal Career Building Tips. Both are great tools at any level of your career.

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