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  • Wisconsin Lawyer
    March 31, 2008

    Ethics: Drawing the Line on Discovery Abuse

    The line between zealous advocacy and unethical behavior in the discovery process is fuzzy at best. Generally, if the conduct advances the client's interests, it is unlikely to be considered a violation of the Supreme Court Rules.

    Wisconsin Lawyer
    Vol. 75, No. 11, November 2002

    Drawing the Line on Discovery Abuse

    The line between zealous advocacy and unethical behavior in the discovery process is fuzzy at best. Generally, if the conduct advances the client's interests, it is unlikely to be considered a violation of the Supreme Court Rules.

    by Dean R. Dietrich

    Dean DietrichDean R. Dietrich, Marquette 1977, of Ruder, Ware & Michler L.L.S.C., Wausau, is chair of the State Bar Professional Ethics Committee.


    I have noticed in my litigation practice that lawyers are very aggressive in their use of discovery procedures almost to the point of harassment instead of conducting necessary discovery for the lawsuit. Aren't there rules that govern this type of conduct?


    Many authors have questioned the alleged lack of professionalism among lawyers in the use of discovery as part of "guerilla lawyer tactics." Others have suggested that behavior that borders on harassment is merely a part of the "zealous representation" that each lawyer is obligated to provide for clients. Drawing the line between "zealous representation" and unethical behavior is not easy.

    There are several Rules of Professional Conduct adopted by the Wisconsin Supreme Court that address the behavior of lawyers in this setting. SCR 20:3.2 provides that "a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." This rule, unfortunately, is open to diverse interpretations of the obligation to "expedite litigation" as compared to the obligation to act "with the interests of the client." This rule offers little guidance or direction to lawyers.

    SCR 20:3.1 gives perhaps more guidance. This rule provides that a lawyer, in representing a client, shall not "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." (SCR 20:3.1(a)(3).) There is, of course, a subjective component of this rule that requires determining if the conduct is known to be undertaken merely to harass or if it is obvious that the action is taken merely to harass another.

    There are very few reported decisions under SCR 20:3.1 to offer further guidance to lawyers about their conduct during discovery proceedings. In one reported decision, part of the reprimand issued to a lawyer was based upon the lawyer's use of misrepresentation to obtain information that could have been obtained properly through the discovery process. In another decision, a Wisconsin lawyer was disciplined for filing several actions that were unsupported by the facts and constituted conduct of a harassing nature.

    SCR 20:3.4, known as the "fairness to opposing party and counsel" rule, also places requirements upon lawyers that affect lawyers' conduct during the discovery process. Under this rule, lawyers shall not "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value." More particularly, lawyers shall not "make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party ... ." This rule's requirements place a greater obligation on lawyers to make legitimate and reasonable discovery demands during a pretrial discovery process and specifically prohibit the strategy of frivolous discovery demands, which often is viewed as harassment.

    The use of discovery to create unnecessary burdens on an opposing party to drive up the cost of or discourage litigation certainly is a questionable representation strategy under these rules. Quite often, however, a lawyer can justify the excessive discovery demands as simply part of the process of "zealous representation." Determining whether a lawyer has crossed the line from aggressively representing the client to using discovery for harassment purposes is almost impossible to quantify. Much of the policing of this issue depends on the standards of the individual lawyer. The Wisconsin Supreme Court also addressed this issue when adopting SCR Chapter 62, entitled "Standards of Courtesy and Decorum for the Court of Wisconsin." Under these standards, which are not enforced by the Office of Lawyer Regulation, lawyers shall "abstain from pursuing or opposing discovery arbitrarily or for the purpose of harassment or undue delay." This requirement, at least, allows the courts to oversee potential problems with discovery abuse, although little action has been taken to date.

    The use of "guerilla lawyer tactics" has not been quantified or clearly defined in ethics decisions. As noted by the Illinois State Bar Association in its Opinion No. 01-06, "the rules do not allow tactics designed merely to injure or harass a third party that have no other legitimate purpose in advancing the position of a lawyer's client." The question will always be whether the conduct that occurred was, in some manner, advancing the client's interests. If so, it is not likely that the conduct will be considered a violation of the Supreme Court Rules. Again, we can only hope that the professionalism of our Wisconsin lawyers will eliminate the types of discovery tactics that you have experienced.

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