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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.

Attorney Trust Accounts and Rule 1.15

Most people know that that stealing money is wrong – both morally and legally. And likewise, attorneys know (or should know) that when acting as a fiduciary, misappropriation – the unauthorized use of funds that belong to a client or third party – is a huge no-no and a disbarrable offense. However, even with this knowledge, attorneys are often disciplined for Rule 1.15 Safekeeping of Property violations. 1

Unfortunately, trust account management is not a subject that is taught in law school. Therefore, many attorneys are learning about their fiduciary responsibilities through on-the-job training. This training may include instances of issues that may rear its ugly head in a few forms:

Reckless Behavior
Reckless or intentional misappropriation is more obvious. Some attorneys believe that “borrowing” entrusted funds – even for a short period of time – is appropriate. Or, in some instances, attorneys believe that if they have sufficient funds in their operating account or, if they have overdraft protection, that this behavior is acceptable. Simply put, it is not. This is the essence of misappropriation and is considered an act of “moral turpitude” by most disciplinary courts. It is a clear violation of Rule 1.15(a).

Overdrawn Accounts
Attorneys are experiencing overdrafts on their trust account and Maryland Business and Occupations and Professions Article Rules 16-605 and 16-610(b)(1)(B) requires financial institutions to notify Bar Counsel’s office of an overdraft of any attorney trust account. When this occurs, Bar Counsel, by statute, is authorized and required to investigate the circumstances surrounding the overdraft. Of special note is that the Maryland Business and Occupations and Professions Article Rule 16-606.1, enacted January 1, 2008, requires – among other things – attorneys to perform a monthly reconciliation of their attorney trust account and sets forth the types of records that an attorney should keep.

Negligence
Intentional or negligent misappropriation occurs when attorneys are not paying attention to their trust account and for a number of reasons, entrusted funds are invaded. Examples include:

  1. Not having enough money in the attorney trust account to account for credit card fees or banking fees;
  2. Relying on checks provided by clients that have “insufficient funds” and failing to reconcile the attorney trust account prior to writing checks against those funds;
  3. Falling victim to internet scams;
  4. Trusting employee(s) that misuse entrusted funds.

These instances can all be avoided with clear banking practices and proper oversight by the responsible attorney. Some attorneys will claim that they do not have the accounting or bookkeeping skills to manage their accounts and that is why these instances of negligent acts occur. Unfortunately, this rationale will not protect the responding attorney from disciplinary action. The Article 5 Rules set forth that an attorney is responsible for the acts of employees or agents of the lawyer. See Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants). If however, an attorney feels that they cannot properly manage their trust account they should seek the assistance of a professional bookkeeper, certified public account, or office manager to assist with these accounting tasks. And even then, the attorney is still responsible for the oversight and management of the account.

Bad Record Keeping
In addition to the negligent acts described above, attorneys also find themselves violating Rule 1.15(a), which requires attorneys to maintain records of all receipts and disbursements from their attorney trust account for at least five (5) years after the transaction was made. Again, this is a rather simple requirement and violations can be avoided with a review of the relevant rules, clear banking practices, and attorney oversight.

Advanced Fees v. Flat Fees
Attorneys historically have misunderstood or misused flat fees in practice. Rule 1.15(c) requires attorneys to maintain unearned fees in an attorney trust account unless the client gives “informed consent, confirmed in writing” to an arrangement that allows the attorney to deposit funds into an operating account. Without this language, which should ideally be in the fee agreement, an attorney may be inadvertently misappropriating unearned fees while believing that they were entitled to the funds because it was characterized as a “flat fee” rather than an advanced fee.

Honest Mistakes
Things happen. But even the most diligent attorney who is familiar with the rules on attorney trust accounts can run afoul of the rules. Some common honest mistakes include:

  1. Depositing funds into the wrong account;
  2. Keeping earned funds in trust too long; and
  3. Not titling account properly as required by Maryland Business and Occupations and Professions Article Rule 16-606.2

While this list is certainly not exhaustive, hopefully it will give you an idea of some of the mistakes that can occur. However, if an attorney has been diligent with their attorney trust account management responsibilities, these mistakes should be simple to correct to bring the attorney back into the land of compliance.

Dolores Dorsainvil is a Senior Staff Attorney at the D.C. Office of Bar Counsel where she investigates, and where necessary, prosecutes cases of ethical misconduct against District of Columbia lawyers. You may read more about Ms. Dorsainvil by visiting her website at www.doloresdorsainvil.com.


1 Rule 1.15 states, “(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the lawyer and shall be preserved for a period of at least five years after the date the record was created.

(b) A lawyer may deposit the lawyer’s own funds in a client trust account only as permitted by Rule 16-607 b.

(c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the lawyer’s own benefit only as fees are earned or expenses incurred.

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property.

(e) When a lawyer in the course of representing a client is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall distribute promptly all portions of the property as to which the interests are not in dispute.”


2 An attorney or law firm shall maintain each attorney trust account with a title that includes the name of the attorney or law firm and that clearly designates the account as “Attorney Trust Account”, “Attorney Escrow Account”, or “Clients’ Funds Account” on all checks and deposit slips. The title shall distinguish the account from any other fiduciary account that the attorney or law firm may maintain and from any personal or business account of the attorney or law firm.

Ethics & Social Media

The legal profession is usually the last profession to adapt to new models with regard to business development. However, with the advent of the internet and the far-reaching effects of various social media platforms, more and more lawyers are finding innovative avenues to use these platforms in their business models.

Social media is a great marketing tool that has many benefits. What’s not to love? It is an inexpensive way to provide exposure, to give lawyers name recognition, and most importantly, it generates clients. For example, lawyers are creating attorney blogs to share relevant information about their practice and recent developments in the law. Lawyers are also using platforms like LinkedIn, Twitter, and Facebook to share information about updates in their law firm. These updates include firm announcements, speaking engagements, sponsorships, successes, or any upcoming legal or community service events.  Social media can provide another form of easy access for a lawyer to communicate with other lawyers in similar professional circles, with clients, as well as with friends and family. Additionally, social media is also an easy way to perform basic due diligence and legal research when a lawyer desires additional information about an opposing party, a potential witness, opposing counsel, or any other third parties.

BusinesswomanLawyers however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical Rules. An attorney, when making a post to a social media platform may expose confidential or proprietary information. This is especially common when a lawyer posts information about a recent success in a matter such as a favorable verdict, or when a lawyer shares an anecdote about their challenges either in court, with opposing counsel, or with a difficult client. These type of posts are unauthorized disclosures and violate a lawyer’s duty to keep a client’s matter confidential as stated in Rule 1.6 which states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or unless there is an exception to the Rule.

Lawyers also must adhere to their jurisdiction’s ethical Rules that deal with lawyer advertising. Lawyers must only make truthful statements that are not misleading in their advertisements and these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client. See Rule 7.1. For example, a statement such as “I’ve won every jury trial I’ve ever had” may be technically true but in order for a prospective client to appreciate a lawyer’s skill-set it would be important to know that the lawyer has only had 3 jury trials. Similarly, it is a violation of the Rules to create a Facebook page where you state your firm name, i.e. “Smith & Associates” if in fact you are a solo practitioner and do not have any associates within your firm. Lastly, a lawyer should be aware that although social media makes transmission of information effortless and easier, lawyers are still prohibited from soliciting prospective clients through real-time electronic contact. See Rule 7.2.

In conclusion, social media is clearly more than just a fad. However, lawyers must exercise careful judgment when using these tools and should be aware of the issues that may arise from its use. With that said, a careful review of the ethical Rules is critical to a lawyer’s understanding of how to effectively and properly use social media platforms.

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.

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