The California Rules of Professional Conduct and the California Business and Professional Code apply to all attorneys practicing in the State of California. Litigators must comply with the same ethics rules, professional standards of care and professional obligations as any other attorney. Still, the application of those rules, standards and obligations for litigators differs greatly from every other practice.
Litigation is by its very nature adversarial: if pursued to conclusion, it produces a winner and a loser. If successful, the finality of the result operates to end a dispute. And with that finality, clients and courts hold litigators directly responsible for actions taken in connection with both the process and the result.
As such, litigators must operate within a limited zone of permitted activities, balancing zealous advocacy, candor to the court, the required standard of care and applicable ethics rules. Unfortunately, as society becomes more litigious, fulfilling duties to clients without overstepping ethical boundaries has become more of a challenge.
Standard of care
Rule 3-110 of the California Rules of Professional Conduct requires that every attorney perform legal services "with competence." In other words, all attorneys in California, including litigators, owe their clients a duty to perform legal services in accordance with the degree of skill, prudence, diligence and care commonly exercised by other attorneys. This duty includes compliance not only with all applicable statutes and rules but also other higher standards.
The standard of care changes as litigators employ new techniques, technologies, and trial tactics. Just last year, the State Bar's Standing Committee on Professional Responsibility and Conduct addressed an attorney's ethical duties when dealing with new challenges in the legal field, namely the discovery of electronically stored information. See Formal Opinion 11-0004. The committee noted that even when dealing with such technological issues, attorneys must uphold their duty of competence by acquiring sufficient skill to deal with the new area or by associating with another competent attorney. Litigators are compared against what is common in the practice, not what has always been done.
Although attorneys are often reluctant to change, the practice of law continues to evolve—and so does the standard of care. Attorneys who refuse to change, or even ignore change, face the increasing risk that they will fall below the standard of care that the rest of the profession has embraced.
An attorney's duty to "diligently" represent clients has a whole new meaning for clients in today's world of television. Cal. R. Prof'l Conduct 3-110(B). Litigators must determine where diligence ends and where unprofessional, sanctionable conduct begins.
Though the duties owed to the court have not changed much, judges' enforcement of those duties has changed. The bench's tolerance for unprofessional or uncivil conduct has grown thin. As a result, the number of orders sanctioning attorneys for unprofessional or uncivil conduct continues to mount.
There are three quick ways to draw the ire of a judge. The first, and quickest, way is to disobey a court order. If genuinely in doubt regarding the requirements of an order, ask the court. No client or representation is worth the risk of directly disobeying a court order.
The second way to draw sanctions is to mislead the court. California attorneys owe a duty of candor to the court. Cal. R. Prof'l Conduct 5-200; Cal. Bus. & Prof. Code § 6068(d). As dockets grow and time pressures mount, judges must rely on this candor. If a judge concludes that an attorney deliberately misled the court, the repercussions can be serious. That attorney not only loses credibility but also could be sanctioned or even lose the right to practice.
The third path to trouble is to waste the court's time—not with argument, but instead with vitriol, acrimony and uncivil conduct. Of the three, this category has prompted the most dramatic change in how judges police the conduct of attorneys.
The one thing attorneys often overlook is that judges, like attorneys, talk with each other. News about bad behavior in front of one judge inevitably makes its way to other judges. The net result is a shorter leash and quicker trigger even in front of judges that an attorney may not have seen before. The better practice is to assume that every judge knows what happens in every other judge's courtroom.
Because the risk of an ethics violation is the potential loss of an attorney's bar license, ethics limitations and professional obligations should be carefully heeded. Below are three ethics issues that merit special attention:
1. Witness preparation
Preparing witnesses is one area in which litigators should take particular care. As the United States Supreme Court noted in Geders v. United States, 425 U.S. 80, 90 n.3 (1976), there is an "important ethical distinction between discussing testimony and seeking improperly to influence it." Indeed, California Rules of Professional Conduct 5-200 prohibits an attorney from presenting false testimony to the court. Violation of this rule could lead not only to discipline by the State Bar but also to criminal prosecution for subornation of perjury.
Restatement (Third) of the Law Governing Lawyers § 116 provides some additional guidance to attorneys regarding how to walk the line between preparing and improperly coaching a witness: "In preparing a witness to testify, a lawyer may invite the witness to provide truthful testimony favorable to the lawyer's client. . . . Witness preparation may include rehearsal of testimony. A lawyer may suggest [a] choice of words that might be employed to make the witness' meaning clear. However, a lawyer may not assist the witness to testify falsely as to a material fact."
2. Trial publicity
Another important ethical area for litigators is trial publicity. According to Rule 5-120, "A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."
Notwithstanding this limitation, attorneys are allowed to make reasonable statements to protect their clients from "the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client." Cal. R. Prof'l Conduct 5-120(C). Thus, if the other party fires first, the attorney can take reasonable steps to protect the client and to curtail the impact of those public statements. However, such a rebuttal must be tailored and limited to that information that is "necessary to mitigate the recent adverse publicity." Cal. R. Prof'l Conduct 5-120(C).
3. Being a witness
Rule 5-210 of the California Rules of Professional Conduct prohibits attorneys from acting as trial counsel if they are likely to be a necessary witness in a jury trial. This is a unique risk because courts and the Rules recognize that Rule 5-210 only applies to jury trials and is only meant to prevent an attorney from appearing as counsel and at witness at a trial. The same risk is not present for proceedings only in front of a judge or for pretrial activities.
There are a few exceptions to this rule: (1) where the attorney's testimony relates to an uncontested issue; (2) where the attorney's testimony relates to the nature of value of legal services in the case (such as relevant to a motion for costs and fees); or (3) where the lawyer obtains the informed written consent of the client.
Litigators, beware of these heightened risks. By merely being mindful of how litigators are treated differently before the bar and the courts, attorneys can take steps to reduce their risk of a bar complaint or a malpractice claim.
As published by The Recorder