On Litigation

While I was considering what topic to write about for this column, I received the sad news that Reverend David Link, Dean Emeritus of Notre Dame Law School (NDLS), where I attended law school, had passed away.  I quickly decided to focus the column on professionalism in litigation.  During Dean Link’s 24-year tenure as Dean of NDLS, he made ethics and professional responsibility a core part of the curriculum, educating “a different kind of lawyer.”  Dean Link’s own life was a blueprint for professionalism, ethics, and service, including establishing a homeless center in South Bend, Indiana, serving as founding President and first Vice Chancellor of the University of Notre Dame Australia, and ministering to prisoners after he became a priest later in his life.

Standards of Professional Conduct

The California Rules of Professional Conduct are intended to regulate the conduct of lawyers in California, and should be reviewed by all practicing attorneys.  Also, at the beginning of any case, it is good practice to confirm whether the jurisdiction has any additional specific guidelines for professional conduct, and to familiarize yourself with these guidelines.  Many jurisdictions, including Santa Clara County, San Francisco County, and the United States District Court for the Northern District of California, have such guidelines.  The guidelines cover topics such as responsibilities to the public and the client, scheduling, extensions, communications with adversaries, discovery, and motions.  But even if the jurisdiction where your case is located does not have additional specific guidelines for professional conduct, guidelines from other courts set an important standard that should be considered.

Responsibilities to the Client

From the very first communication with a client or potential client about a new litigation matter, the attorney should carefully consider whether the matter is something the attorney can handle, or whether it would be in the client’s best interest to refer the matter to another attorney with better expertise in the matter or who could handle the matter more efficiently by offering a different fee structure.  The attorney should carefully review available information about the matter and advise the client about the strengths and weaknesses of the case, including advising against initiating litigation or taking other actions that do not have merit.  It is important to know the client’s goals regarding the litigation from the outset and to keep those goals in mind throughout the litigation, including any changes to the goals.  Sometimes, an early resolution is the best course of action and explaining alternative dispute options to the client early on in the litigation is good practice.  Regular communication with the client about the status of the litigation, proposed actions, and budgets is paramount. 

Responsibilities to Opposing Parties and Their Counsel

While attorneys must zealously represent their client’s interests, this can be done without using sharp practices or at the expense of civility and professionalism.  Attorneys should endeavor to establish a cooperative relationship with opposing counsel from the beginning of the case.  This includes coordinating in advance on scheduling hearings, depositions and discovery, refraining from scheduling events when it is known opposing counsel is not available, and granting reasonable requests for extensions of time or continuances which will not prejudice the client or unduly delay a proceeding.  Attorneys should promptly respond to communications from opposing counsel and refrain from disparaging counsel.  It is easy to respond to a nasty email from an adversary by shooting off an equally nasty response.  But take a breath before hitting the send button, and consider a professional response that will vigorously represent your client without getting in the mud with counsel who chooses not to act professionally.              

Responsibilities to the Court

Discovery should serve a purpose and not be used as a weapon to bury an adversary in paper or cause unnecessary burden or expense on a party.  Attorneys should be familiar with the applicable rules, including local rules for the jurisdiction.  Consider meeting and conferring with opposing counsel before filing motions regardless of whether any rule requires it.  Professionalism includes filing motions that are well grounded in fact and law, showing up on time and prepared for hearings, including wearing professional dress (neutral color suits and ties for men and neutral color suits and dresses for women), even with video court appearances as you are still in court, and making arguments that zealously represent the client, but are respectful of the Court, parties, and counsel.      

Responsibilities to the Public

We are fortunate to have clients who can afford legal representation, but many are not so fortunate.  Opportunities for pro bono service abound, so consider if you have particular expertise that might be a good fit for a particular organization.  Attorneys should keep up to date with current laws, and participate in organizations that advance the law and educate attorneys and the public.  Organizations such as ABTL, the American Inns of Court, which is focused on ethics, civility and professionalism in the legal profession, and local Bar associations do an excellent job educating attorneys to seek the highest levels of professionalism, and this education will have a positive lasting impact on the public and the profession.   

Caroline McIntyre is Managing Partner with Bergeson, LLP in San Jose, where she practices business litigation.  cmcintyre@be-law.com