Vol. 77, No. 10, October 2004

Maintaining Decorum in Court Candor and Civility

by Dean R. Dietrich

Question

I have experienced many instances in which opposing counsel has gone out of her way to make inflammatory statements when communicating with the trial court. Isn't this prohibited by the Rules of Professional Conduct?

Answer

Lawyers often walk a delicate line between advocating for their client and maintaining a proper level of decorum when interacting with the court or with an opposing party. Many people say that the legal profession has lost touch with the professionalism and civility that existed in the past between lawyers. Others say that lawyers owe it to their clients to aggressively advocate their positions. Whether or not you agree that civility has been lost, it is always important to remember that lawyers owe a special duty of candor to the tribunal and this duty should guide lawyers when they advocate to the court.

SCR 20:3.3, entitled "Candor Toward the Tribunal," provides the basic guidance to lawyers in their communications with the court and with opposing parties. A lawyer may not "knowingly (1) make a false statement of fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) 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 (4) offer evidence that the lawyer knows to be false." These general rules govern the duty of a lawyer when interacting with a tribunal such as a trial court or other court of jurisdiction. These rules do not, however, address the common situations in which a lawyer may be communicating with the court and opposing counsel about a pending matter and offer both editorial comment and sometimes even inflammatory statements that do nothing to further the cause before the tribunal. These types of inflammatory statements, such as blaming opposing counsel for failing to accept a settlement or for causing a delay in the court proceedings, often stretch beyond the realm of reasonableness but do not constitute a false statement of fact or law.

SCR 20:3.1, entitled "Meritorious Claims and Contentions," offers further guidance for lawyers. Under this rule, a lawyer shall not, when representing a client, "file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such an action would serve merely to harass or maliciously injure another." This rule can, of course, be interpreted many different ways and to many different degrees. On its face, the rule is intended to prevent an attorney from participating in a course of action the goal of which is only to harass another, whether it be the opposing party or the opposing counsel.

Defining whether a lawyer has acted in such a way is very difficult and subject to a great deal of interpretation. A recent decision from the U.S. District Court for the District of Minnesota shows one view of the type of bad faith conduct of an advocate that is subject to sanctions. In this case, Schaffhausen v. Bank of America, No. 033492, the plaintiff's counsel was ordered to reimburse the defendant for reasonable costs and fees for making a motion for enlargement of time after the plaintiff's counsel refused to agree to an extension of time to answer a complaint unless the defendant stopped pursuing a particular course of action. In ordering sanctions against the plaintiff's counsel, the magistrate judge determined that the counsel's conduct was unreasonable. The district court judge upheld the finding, concluding that the plaintiff had no reasonable opposition to the request for an extension of time to answer the complaint, particularly because counsel did not oppose the motion seeking the extension. The court found that the conduct of the plaintiff's counsel "created unnecessary work for the court's staff and unnecessary expense for opposing counsel." Monetary sanctions were levied against the plaintiff's counsel for his conduct. This is but one example of how a lawyer can overreach for the sake of advocacy and act contrary to the lawyer's duty to the tribunal.

Even though attorneys are always expected to avoid harassing types of behavior, we sometimes run into an advocate who continues to act inappropriately. Lawyers need to be patient when dealing with the unruly opposing counsel. An off-the-record conversation with the offending attorney is the first step to addressing the conflict between counsel. A letter to the opposing counsel registering a formal objection to the offending behavior may have to follow. Finally, lawyers may have to report the continuing offensive conduct to the Office of Lawyer Regulation.

Several Supreme Court Rules speak to the conduct of lawyers and set expectations for lawyer conduct. It is important for every Wisconsin lawyer to remember that the Rules of Professional Conduct apply to their behavior in virtually every situation. As officers of the court, lawyers are expected to exercise the appropriate level of decorum and civility in all their dealings with the tribunal and opposing parties.

Opinions and advice of the Professional Ethics Committee, its members, and assistants are issued pursuant to State Bar Bylaws, Article IV, Section 5. Opinions and advice are limited to the facts presented, are advisory only, and are not binding on any court, the Office of Lawyer Regulation, or State Bar members. Attorneys with questions on professional ethics issues may contact the Ethics Hotline at (800) 444-9404, ext. 6168; or (608) 250-6168 (all day Wednesday); and (608) 629-5721 on Monday, Tuesday, Thursday, and Friday mornings. Send written requests for Professional Ethics Committee opinions to the Professional Ethics Committee, c/o Keith Kaap, State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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