Posts Tagged ‘civility’

Mediation Message No. 110

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 110

ATTORNEYS MAY NOT MAKE MISREPRESENTATIONS TO THE COURT

Both the Business and Professions Code and the Rules of Professional Conduct prohibit attorneys from making misrepresentations to a judicial officer. Business and Professions Code section 6068, subdivision (d), provides that attorneys shall never “seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Rule of Professional Conduct 5-200(B), which adds jurors to this prohibition, states that an attorney “Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.” These standards reflect the policy that “Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.” (DiSabatino v. State Bar (1980) 27 Cal.3d 159, 162-163, quoting Paine v. State Bar (1939) 14 Cal.2d 150, 154.)

Deceit may be committed by an outright affirmative falsehood or by concealment of a material fact. (Daily v. Superior Court (1935) 4 Cal.App.2d 127, 131; see also Franklin v. State Bar (1986) 41 Cal.3d 700, 709 [“…concealment of a material fact ‘misleads the judge as effectively as a false statement…’”].)

It is not necessary that the court be deceived by the misrepresentation (Davis v. State Bar (1983) 33 Cal.3d 231, 240) or that the misrepresentation did not cause harm (Scofield v. State Bar (1965) 62 Cal.2d 624. 628 [“The suppression of that which is true, by one having knowledge or belief of the fact, to deceive another, or to induce him to enter into a contract, constitutes actual fraud.”]) because “it is the endeavor to secure an advantage by means of falsity which is denounced.” (Pickering v. State Bar (1944) 24 Cal.2d 141, 145.) It is also not a defense that the attorney believed it was necessary to lie to protect his or her client. (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 193.)

The following are examples of misrepresentations to the court: Signing a declaration on behalf of a declarant. (Garlow v. State Bar (1982) 30 Cal.3d 912); making false statements in an effort to disqualify a judge. (Lebbos v. State Bar (1991) 53 Cal.3d 37); filing a false statement regarding a client’s financial condition. (Dixon v. State Bar (1982) 32 Cal.3d 728, 738-739); falsely representing unawareness of the date and time of a court proceeding of which the attorney had notice and an obligation to appear. (In re Aguilar (2004) 34 Cal.4th 386, 393-394); misrepresenting grounds for a continuance. (Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 354); not advising the court where a client could be reached. (Davidson v. State Bar (1976) 17 Cal.3d 570, 574) and representing to a mandatory settlement judge that the client did not believe he was responsible for the accident and wanted the matter to be tried, when the attorney knew that the client was dead. (In the matter of Jeffers (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 211; note that mediation confidentiality does not apply to an MSC.)

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, May 2015

Mediation Message No. 109

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 109

ATTORNEYS SHOULD HONOR AGREEMENTS WITH EACH OTHER

A too common refrain or complaint is that attorneys don’t keep their promises to opposing counsel, such as in calendaring matters. While there is no specific ethical rule requiring that such promises be kept, it can be extrapolated from Bryant v. State Bar (1942) 21 Cal.2d 285 and Grove v. State Bar (1965) 63 Cal.2d 312 that the obligation exists in certain situations.

In Bryant, the attorney was disciplined for violating his agreement not to commence any action on a note and chattel mortgage until opposing counsel had returned from out-of-town. Bryant claimed that he had promised only that he would not begin any action without notifying opposing counsel’s office, which he did and got no response. In finding opposing counsel’s version of the facts more credible, the Supreme Court found that Bryant had “violated his word given to another attorney” and, in so doing, took advantage of that attorney. (Id. at pp. 293-294; [It should be noted that no existing ethical rule prohibits the breach of such a promise although that fact should not stop counsel from bringing Bryant to the trial court’s attention.].)

In Grove, on the day of a calendared motion in a family law matter in Hayward, California, the husband’s attorney called Grove’s secretary (Grove was representing the wife) to ask for a week’s continuance because he could not get a plane out of Los Angeles in time for the hearing. The secretary gave this information to Grove who did not advise the court of the call. As a result, the judge treated the cause as a default matter.

It was found that Grove’s failure to advise the court of opposing counsel’s request violated both Business and Professions Code sections 6068, subdivision (d) (attorneys must “never … seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law”) and 6106 (moral turpitude). “The concealment of a request for a continuance misleads the judge as effectively as a false statement that there was no request. No distinction can therefore be drawn among concealment, half-truth, and false statement of fact.” (Id. at p. 315; in this instance, unlike in Bryant, the conduct was disciplinable because it involved a misrepresentation to the court.)

MDM’s observation: The practice of law is difficult enough without having to deal with uncompromising or obstreperous opposing counsel. Give in on the matters that are mundane and relatively unimportant; save the fireworks and hubris for issues that go to the heart of the case.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, April 2015

Mediation Message No. 103

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 103

CIVILITY PART 1– TREAT EACH OTHER WITH RESPECT

In 2003, when I started writing Mediation Messages and Arbitration Insights, I commented only on subjects directly related to mediations and arbitrations. I broadened the base in 2011 by discussing case law that impacted litigation practice and, more particularly, admissible evidence at trial. Now, three years later, I’m going to devote some of these monthly messages to the lack of civility in the practice of law because little has been done to correct the problem despite a lot of rhetoric that it’s got to stop. My thesis is that aspirational but otherwise unenforceable bromides (see, for example, the State Bar’s Attorney Guidelines of Civility and Professionalism) aren’t the solution because lawyers are not impressed by unenforceable standards; instead, like children, they  need rules that, if not followed, can lead to consequences. And, there are enough standards in case law, statutes (for instance, the Business and Professions Code) and the Rules of Professional Conduct to define how lawyers should act, especially in court.

Let’s start with the broad generalization that lawyers should treat each other with respect. While there is no statute or Rule of Professional Conduct requiring such conduct, Kirsch v. Duryea (1978) 21 Cal.3d 303 and Tenderloin  Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299 do so hold. Kirsch states, “In addition to competing strategies, an attorney is often confronted with clashing obligations imposed by our system of justice. An attorney has an obligation not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” (Id. at p. 309; accord, In re Marriage of Flaherty (1982) 31 Cal.3d 637, 647.) Tenderloin emphasizes the above rule and then notes that it “makes it obvious that even if a legal step taken or legal procedure pursued has justification in law, the timing thereof may be oppressive and may constitute harassment if it unjustifiably neglects or ignores the legitimate interest of a fellow attorney.” (Id. at p. 306.)

Respect is not earned easily in the legal community, especially when there are thousands of lawyers preoccupied by other pressing needs. This is not a problem in legal communities with fewer number of lawyers who know one another. But, in more populous cities or practices, where anonymity prevails, lawyers generally do not develop close relationships with opposing counsel.  To bridge this issue and attempt to establish a relationship with opposing counsel after commencing a controversy or litigation, call or email opposing counsel and suggest an early in person meeting at a neutral location to discuss issues that may arise, such as service of papers, order of discovery and vacation dates. This one-on-one will make it more difficult for opposing counsel to treat each other harshly when they have now have a face and identity.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, October 2014