Module 8 – Ethics and Professionalism/ Professional Expectations/ Civility Flashcards
The 4 C’s of Professionalism
- Character
- Competence
- Commitment
- Civility
Overall Goals:
- Promote Fairness
- Promote Integrity in the profession
- Promote Civility
Fairness
- Accommodating lawyers & clients
- Not manipulating situations to deceive lawyers or the court
- Not taking advantage of inexperience
Integrity
- Honesty
- Purity of motive
- Incorruptibility
- Subordination of personal interest to interests of the greater good
- Values integrated into behavior - “walk the walk”
Civility
- Broader meaning of respect for others
- Includes public & private setting –> dual duty to be officers of the legal system & public citizens
Advocacy v. Civility
- Zealous advocacy does not mean the use of offensive tactics
- You can advocate with civility, respect, & courtesy
- Clients may encourage competitive uncivil behavior but lawyers are charged with a responsibility & duty to be civil towards another and everyone else
- Lawyers are more than just hired guns
Declining civility in the legal profession (7)
- Deliberate misrepresentation of facts
- Not agreeing to reasonable requests for accommodation
- Frivolous lawsuits
- Inflammatory writing in briefs and motions
- Attitude of doing whatever it takes to win
- Incivility among lawyers is described as a pandemic
- Incidents of incivility on internet destroy careers
Why is Civility so important?
- It’s the right thing to do
- Required by the Bar
- Tangible Benefits:
- Job Satisfaction
- Less Stress
- Lower incidents of mental illness & substance abuse
- Easier to resolve matters to the client’s benefits
- Less costs to the client
- Respect from the judicial community / better reputation
- Respect from clients
Consequences of Incivility:
- Disciplinary Proceedings
- Monetary Sanctions
- more difficult to resolve client matters
- increasing cost to client
- undermining public confidence in the justice system
Causes of Lack of Professionalism:
- Competition for clients & fees
- Money making overrides commitment to public service
- Professionalism is becoming commercialism
- Overall lack of civility in society
Response to the Problem
- Attention to professional standards through state bar association
- Attention to professional -standards through law school education of moral & ethical values
Florida Bar Expectations
- Commitment to equal justice under the law and public good
- Honest and effective communication
- Adherence to a fundamental Sense of Honor, Integrity, and Fair Play
- Fair and efficient administration of justice
- Decorum and courtesy
- Respect for time and commitment
- Independence of judgement
Speaker:
Nilo Cuervo
Assistant State Attorney for the 11th Circuit in Miami-Dade County and Adjunct Professor of Constitutional at FIU in the Department of Politics and International Relations. He is also an alumni having graduated from FIU in 2003 as a Business major. He then went on to Law School and graduated Summa Cum Laude from University of The District of Columbia - The David A. Clarke School of Law. Upon graduation, he clerked for Judge Judith Macaluso of the District of Columbia Superior Court (2007 - 2008) before working as an Assistant Attorney General for the District of Columbia from 2008 until 2014 when he joined the State Attorney’s office in Miami-Dade County.
In his capacity as Division Chief for the Homicides/Gun Violence Reduction Initiative unit, Professor Cuervo is faced with many difficult ethical decisions. He will be in class to discuss his journey and the importance of Ethics and Professionalism.
Nilo: First Step of a Case
- head out and investigate (forensics and scene)
- get warrants (do we have probable cause to search the house of who the witness identified the car belonged to)
- witness interviewed and credibility questioned
- Have to be CLEAR about what the witness saw, no room to be vague because that is an ethical violation (make sure it is clear and accurate even if it hurts your case)
Nilo: Ethical Obligations
- have to let the court know of both strengths and weaknesses of your case
- have to have good-faith basis
- have look at the confession tape yourself (YOU are responsible for the evidence and the case)
- once the prosecutor charges, ethical obligations are tighter (can only charge crime where you have a good-faith basis to take to trial)
- Have to file information –> let’s defendant know of the charges against them
- Ethical obligations to turn over all evidence acquired –> even evidence that is helpful to the defense (Brady)
- You have a duty to find information if you suspect it exists
- Prosecutor is responsible for xeroxing evidence over to the defense
Nilo: Brady Defense
- or disclosure; prosecution has to turn over evidence that helps the defense/exonerates the defendant
Nilo: Sentencing
- 1st degree life, 2nd degree 25 yrs-life
- Giving different sentences for cases with similar evidence –> based on race, gender, sexual orientation, is an ethical violation
Nilo: Picking a jury
- Voir dire - process, venire - group of prospective jurors (12 ppl)
- cannot choose based on race, gender, sexual orientation
- Freedom of information request (sunshine law) –> any person has the right to request access to federal agency records or information; provides a right of access to governmental proceedings at both the state and local levels.
Nilo: Repurcussions
- violation discovered –> reversal (do it all again + footnote about you)
- created an injustice
- not get many clients, less money, lose job, damaged reputation
- disbarment
- criminal consequences in extreme cases
Nilo: Proving guilt
Onus on the government to prove defendant guilty not the other way around (defense’s job is to ensure you have a fair trial)
Nilo: Client privilege
No client privilege if defendant is going to commit a heinous crime (telling past sins is fine) –> have to call bar (ethical hotline)
Nilo: Nolle Pros
no longer prosecuting, dismissed case (only if witness leaves country, passes away, do not have to tell judge but can, and defendant is no longer defendant)
Civil behavior is a core element of
attorney professionalism –> lawyers serve as representatives of their clients, officers of the legal system, and public citizens with special responsibilities for the quality of justice
What is civility and what it’s not?
- civility is a code of decency that characterizes a civilized society (early use referred to being a good citizen)
- it is NOT liking someone, agreeing with someone, or absence of criticism
Civility is not agreeing with someone
- underlying the codes of civility is that people will disagree (democratic process thrives on dialogue which requires disagreement –> civil dialogue over disagreements is democracy’s true engine)
Civility is not liking someone
compelled to show respect even for strangers sharing our space (in public, in the office, in the courtroom, and online)
Civility is not absence of criticism
respect for other may call for criticism
Civil is not politeness/manners alone
impoliteness is uncivil but just having good manners is not civility
Civl Conduct as a condition of lawyer licensing
- profession is self-governing –> courts typically set standards for who is admitted to practice in a stain and the ethical obligations they are bound to (candidates must certify they are of good moral character/general fitness to practice law)
- state licensing authority’s committee on character and fitness will only recommend admission if applicants record demonstrates basic eligibility requirements for the practice and justifies the trust
- Capacity to act in a manner that engender respect for the law/profession (civility) is a requirement for receiving a law license and in some jurisdiction retaining the privilege of practicing
Lawyer as public citizen
- at the top of the lawyer’s code of ethics – Preamble to the Model of Rules and Professional Conduct – we read of the larger civic duties binding every practicing lawyer
- Counsel is expected to show respect for the legal system even in client dealings in their role as advisor, negotiator, or evaluator (Preamble Cmt.5)
- as a public citizen w/ special responsibility for the quality of justice, lawyer should seek improvement of the law, access to justice, cultivate knowledge of the law beyond its use to clients, and further the public’s understanding of the law/justice system, (Preamble Cmt.6)
Tension between zealous advocacy vs. civility
- discretion and judgement required to draw a balance between duties to the client, legal system, and personal interests (while maintaining professional, courteous, and civil attitude to all –> Cmt. 9)
-
According to Model Rule 1.2 + Cmt. 1, zealous advocacy is
encouraged +comment speaks to the depth of that duty –> act with zeal and advocacy on client’s behave despite personal inconvenience and take measures required to vindicate client
Model Rule 1.3 Cmt. 1 states
lawyer is not bound to press for every advantage that might be realized for a client…duty to act with reasonable diligence does not require the use of offensive tactics or preclude treating all persons involved with courtesy and respect
Appropriate zeal never extends to
offensive tactics or treating people w/ discourtesy/disrespect (individual lawyer is guardian of the tone of interactions that will serve client/legal system)
Many clients are under the misconception that because they hired a lawyer they have the power to
dictate the lawyer’s conduct (lawyer has to manage/correct this expectation –> more than hired gun
Lawyer may withdraw if the client insists on
taking action that the lawyer considers repugnant or has fundamental disagreement with (Model Rule 1.16 (b)(4) of the ABA Model Rules of Professional Conduct)
Rule 3.1
lawyer cannot abuse legal procedure by frivolously bringing or defending a proceeding or asserting/defending and issue
Evidence to points to a ____ in incivility in the American Bar
Increase
Incivility without some associated violation of ethical rules has, historically, not been
prosecuted by regulatory authorities (no good data)
Discussion of the incivility problem tends to dwell in two areas:
1) examples of lawyers behaving badly we can distinguish ourselves from
2) possible causes and justifications rather than solutions
Pin to combo of factors –> outrageous portrayals, inexperienced lawyers starting their own practice w/o mentoring, and anonymity and isolation of online platforms
Illinois Supreme Court of Commission 2007 survey
majority of practicing lawyers (sample of attorneys across state) experience unprofessional behaviors by fellow members of the Bar –> especially strategic incivility - strategically employed uncivil behaviors to gain upper hand (deliberate misrepresentation of facts, not agreeing to reasonable requests for accommodation, indiscriminate/frivolous use of pleadings, and inflammatory writing in briefs and motions)
- “General view that zealous rep = doing whatever it takes (legally) to win” – survey respondent
Benefits of Civility
- profession requieres civility
- right thing to do
- repetitional gain and career damage avoidance
- strategic advancement in lawyer’s engagement
- higher personal and professional rewards
Matter of William Gary White III
copied opponent in a letter insulting them as an intimidation tactic (90 day suspension)
Most successful way of addressing incivility is
bringing lawyers together for training and mentoring
Lawyer speech triggers both civility and constitutional concerns
David L. Hudson Jr.
H. Scott Fingerhut, a law professor at Florida International University, explains that incivility can be traced to the adversarial nature of law practice in the U.S.
Oath of admissions defines the core qualities of the commitment you make to
the court, the Bar, and to colleagues
Client interests are better served when lawyers behave civilly even though
- clients may want the no-holds barred lawyer
- best way forward is civility (practical)
Defining Civility (Ch.4)
- includes treating others with courtesy and respect
- extends to avoiding unnecessary rhetorical excesses, insults, quarreling, intimidation, and creating more work for adversaries just because
6 Practical benefits of civility
- most lawyers do not do their best work irate
- don’t do best listening angry
- opportunities for resolution can be lost if counsel aren’t listening to each other
- what goes around comes around
- uncivil behavior backfires –> met with worse or equal behavior
- effects of uncivil behavior on third parties (judge) –> win over judge by being civil/builds positive record
Cannot assume private communication
will remain private (tone and content matter –> facts not adjective will get you ahead)
Returning client phone calls and responding to emails in a timely manner is part of
civil behavior
- inantenTion can be rude, insulting, or unethical to clients (malpractice)
- intemperate responses to clients (informal complaints)
- legal malpractice lawyers/disciplinarians attach significance to how a lawyer said things
Civility as a strategy
- think about how/when specific civil conduct can advance a client’s and your interests
- Civility is not the same as sacrificing client rights/objectives when representation may be unpleasant
- where appropriate, consider rejecting/resigning in the case of distaste for objectives/situation
