On Legal Ethics

In continuing our examination of the applicable rules of ethics and professionalism governing attorneys' conduct in the courtroom, this article will examine the applicable California Rules of Professional Conduct and some of the relevant ABA Model Rules of Professional Conduct.

Ethics rules governing conduct toward opposing counsel

In a previous column we discussed Cal Bus. and Prof. Code 6068, duties as a lawyer, and discussed specifically the duty of respect to the court in paragraph (b). Interestingly, there is no explicit duty of respect to opposing counsel listed in section 6068. Hence the distinction made between ethics, professionalism and civility. There are, however, other ethics rules that govern conduct towards opposing counsel as well. These can be found in the ABA Model rules as well as many individual state's ethics codes.

Regarding the usefulness of the ABA Model Rules, remember that when California does not have an ethical rule governing a specific issue, courts may look to the ABA for guidance, although they may not consider ABA Rules and Opinions as binding authority. While an ABA formal opinion "does not establish an obligatory standard of conduct imposed on California lawyers," the ABA Model Rules may be considered as a "collateral source" where there is no direct ethical authority in California (State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656.).

Rule 3.4 -- Fairness to opposing party and counsel

Several sections of this Rule relate to the issue of civility. This section states in pertinent part that a lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(c) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

Rule 3.4 Comment [1] recognizes the competitive nature of the adversarial system, but notes that fair competition is limited by prohibitions against certain unethical behavior, including "obstructive tactics in discovery procedure, and the like."

Several other Model Rules are relevant to the issues of civility.

Model Rule 4.4 -- Respect for rights of third persons

Subsection (a) of this Rule states that: 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.

Rule 8.4 -- Misconduct

This Rule's definitions of professional misconduct include in subsection (d), engaging in conduct "that is prejudicial to the administration of justice." Comment [3] states that "[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice."

Specific ethics and civility rules for criminal attorneys

With respect to criminal attorneys, at a national level, there are specific ethic rules that apply to attorneys' duty of professionalism.

Courtroom Professionalism (Standard 3-5.2 for prosecutors, Standard 4-7.1 for defense attorneys) states that as officers of the court, criminal lawyers "should support the authority of the court and the dignity of the trial courtroom by strict adherence to codes of professionalism, and by manifesting a professional attitude toward the judge, opposing counsel, witnesses, defendants, jurors, and others in the courtroom." These Standards state further that criminal attorneys "should cooperate with courts and the organized bar in developing codes of professionalism for each jurisdiction."

Conclusion

In summary, while lawyers can and should vigorously represent their clients in court, they are not permitted to do so at the expense of disrespecting the court, and are certainly unprofessional at the least when they intentionally disrespect opposing counsel. Knowledge of the applicable ethical and legal rules governing the proper relationships between lawyers, judges and opposing counsel will permit the savvy lawyer to maintain the interests and reputation of their clients, as well as themselves.

Patrick Mazzarella is a deputy district attorney in the Family Protection Division of the San Diego District Attorney's office and is the chair of the San Diego County Bar Association Ethics Committee. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.