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| ABA's Model Rules of Professional Conduct |
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Wednesday, February 07 2007 @ 08:34 PM EST
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I don't want you to become unduly bitter or cynical about the legal system. From my email and comments I've seen, I fear that is happening to some of you. I wanted to show you that in fact there are rules of proper conduct for lawyers. Here are the ABA's Model Rules of Professional Conduct.
Here are the three sections that I think will be most meaningful and reassuring to you, the parts about not lying to the court, not deliberately dragging out litigation, and not bringing or maintaining frivolous claims. It will help you to understand that when Magistrate Judge Brooke Wells asked the parties in SCO v. IBM to be courteous to each other and play fair, she had a legal basis, not a pipedream, behind that reminder. There's a rule about that too, being fair to the opposition. Remember her words back in 2005? The foundation of our legal system depends in part upon the cooperation of adversaries who are required by the civil rules to provide information essential in "secur[ing] the just, speedy, and inexpensive determination of every action." Fed. R. Civ. P.1. Unfortunately though, this standard is often abandoned perhaps in part due to the aggressive adversarial nature of litigation and the large amounts of money involved. Although counsel are expected to protect their client's interests and guard against excessive burdens, such efforts should be tempered with candid cooperation between adversaries. In an ideal world, cooperation would lead to a streamlined discovery process whereby the fact finder could quickly resolve the ultimate issues found in disputes. Such a situation promotes efficient disposition of litigation, which is generally a good thing. Doubtless as the parties are well aware, all cases do not exist in the ideal world. However, this does not excuse counsel from striving to meet this standard. There is a standard. So, this is Legal True North. If as we go along you notice something leaning to the left or the right (or straight down), you should know it's not the ideal. Let's look at one of the rules in full, the one about not lying to the court.
Here's Rule 3.3: Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. She was referencing the Federal Rules of Civil Procedure, specifically the very first one. Those are actual rules, not model rules. Can anything happen to a lawyer who blatantly violates the rules? Of course, although it's rare. But when it happens, it's usually at the very end of the litigation. I just want you to know that your instincts are right. The law is supposed to be respectfully and honorably practiced. Otherwise, what is law for?
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| Authored by: Anonymous on Wednesday, February 07 2007 @ 09:16 PM EST |
A friend and former law student once told me that lawyers never lie, they simple
state "the least likely truth". Only a lwayer could come up with
that!
Darcy O'Neil
www.theartofdrink.com[ Reply to This | # ]
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| Authored by: overshoot on Wednesday, February 07 2007 @ 09:21 PM EST |
If you have links, please make them clickable HTML. Details are in red at the
bottom of the comment form.[ Reply to This | # ]
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| Authored by: overshoot on Wednesday, February 07 2007 @ 09:24 PM EST |
However, the real question is whether (or how strictly) they're enforced. At
least one of the Groklaw contributors who has actually practiced law answers,
"not."[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 07 2007 @ 09:26 PM EST |
How can someone not get cynical after watching the abuse for over three years
and see the lawyers treated like rock stars and see what appear to be spineless
judges. [ Reply to This | # ]
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| Authored by: freeio on Wednesday, February 07 2007 @ 09:44 PM EST |
"The law is supposed to be respectfully and honorably practiced. Otherwise,
what is law for?"
From my experience, it is frequently used by those with deep pockets to punish
those with shallow pockets, regardless of the merits of the case. The practices
of the RIAA or the BSA come to mind here. Sue anybody and everybody, and force
them to more or less prove that they didn't do what was claimed, or else to
"settle" for large amounts of money.
This is much like politics or sports. There is a set of supposed rules, which
are not how the game is actually played. Those who play by the rules are
considered to be rubes or suckers by those who misuse the system to achieve
their own ends. Unfortunately, there is a significant segment of society who
play by their own rules, at the expense of everyone else, and many do it by
misusing the legal system, and consistrntly getting away with it.
---
Tux et bona et fortuna est.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 07 2007 @ 09:57 PM EST |
How does the punishment happen? Does each side make submissions to the judge
about where they think the other has broken the rules, or does the judge decide
on their own? Do the allegedly offending lawyers get notice that they're in
trouble, so they can defend themselves? If a judge smacks down a lawyer severely
after finding against their client, can the lawyer paint this as "the judge
had it in for me" on appeal?
What punishments are available? If fined, will a lawyer generally have insurance
against this? (Are SCO's lawyers' insurers looking at this case and raising
their premiums?)
Rule 3.3(a)2 looks to require a lawyer to give legal advice to their opposition
- I bet this isn't followed often.
Rule 3.3(a)3(a) looks like if you're defending (criminally) someone who you know
to be guilty, you can't call a witness who will give (e.g) a false alibi for
them. (But you can let the accused lie all they like.)[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 07 2007 @ 10:05 PM EST |
I don't want you to become unduly bitter or cynical about the legal
system.
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 07 2007 @ 10:10 PM EST |
Sadly, I can say from my own personal knowledge that I haven't seen much
adherence to these rules by any lawyer or judge I have had legal contact with. I
will however say that of the numerous lawyers and judges I know personally they
do seem to be reasonable and moral individuals.
To top it off, I can say that Boise Schiller takes the cake.[ Reply to This | # ]
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| Authored by: josmith42 on Wednesday, February 07 2007 @ 10:28 PM EST |
In an ideal world, cooperation would lead to a streamlined
discovery process...
In an ideal world, there would be no
litigation to write rules about.
---
This comment was typed using the
Dvorak keyboard layout. :-) [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, February 07 2007 @ 10:50 PM EST |
I don't know what point you're trying to make here. Whatever it was, I think
you've failed.
This litigation was frivolous from the day it was filed. It still is.
Now you tell us that there are rules that attorneys are supposed to follow. Who
gives a toss?
SCO and their attorneys have managed to drag this out for years. They continue
to do so, currently by asking for review upon review. They have made a mockery
of the justice that the court is supposed to dispense. They have made
laughingstocks out of Kimball and Wells.
And you want us to believe that these so-called rules actually mean something,
that these so-called rules actually have some value? Get real, PJ. If this is
what you really believe, then I'll have to go elsewhere looking for facts.[ Reply to This | # ]
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| Authored by: wharris on Thursday, February 08 2007 @ 12:05 AM EST |
If I heard the argument "Law is an ugly process. The defense attory lies
and
cheats to try to get his client off, the prosecutor lies and cheats to try to
get a
conviction no matter what, and the judge/jury has to muddle through to
attempt to find the truth" then I might disagree with it, but it would at
least
be consistent with actual process.
What irritates me most about our legal system *isn't* that lawyers lie and
cheat, it's that they simultaneously claim "Oh, we have a strict code of
ethics
preventing us from filing frivoloous lawsuits. We're officers of the court,
doncha know?".
Numerous examples of SCO's deception abound -- not least of which is by
2005 they knew they had "an astonishing lack of evidence" but they
contiuned pressing their claims and demanded extremly expensive evidence
from IBM which aparently they barely looked at and certainly didn't help
them. Add in their unsupported-by-anyone-on-any-side-of-the-original-
contract interpretation of IBM's use of home-grown AIX code, their lies about
serving Intel et. al "vaild subpoenas", their lies about Linux
development and
developers, ....
If you want us not to be cynical, it is not enough to say "Look, here are
the
rules SCO broke." You must also show us that SCO's attorneys will suffer
from
breaking them (Please don't say that SCO will suffer by loosing the case. They
loose the case because they have no evidence; what additional penaly will
they have from having no evidence and lying to the court about it?). Saying
"The punishment comes at the end" is better than having no punishment
at
all, but (1) I can't help but wonder if I, as a non-laywer, could commit perjury
for 2-5 years prior to being stopped and (2) only the wealthiest of
multinational compnaies can afford to make it to "the end".
Nuisance lawsuits are a major problem in America right now. When people
write about how and why SCO failed they are sadly unlikely to conclude "SCO
failed primarily because they had no evidence and thier court case fell apart
immedially." Instead the conclusion is more likely to be "SCO failed
because
they didn't realize that IBM was willing to pay $10s of million$ to defeat
them. They should have started by suing SGI instead"
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 08 2007 @ 12:25 AM EST |
Even Biil O'Reilly did a show on how defense lawyers knowingly lied to the court
and jury and the State of California Bar chose to do nothing.
Need more examples?[ Reply to This | # ]
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| Authored by: devil's advocate on Thursday, February 08 2007 @ 01:22 AM EST |
I have yet to see an outright undisputed lie promulgated by SCO's lawyers. Sure,
they bend the truth. One often suspects that they don't even believe what they
say themselves, but it always has an air of plausibility to it, so that someone,
somewhere might think it was true. Take for example the allegation that the APA
"necessarily" transfered the copyrights to SCO because they
transferred all right title and interest in UNIX. It doesn't matter that they
don't mention the APA expressly excluded the copyrights. Amendment 2 saves them
and raises a vague issue of doubt. So how is a judge going to accuse a lawyer of
lying without entering into another case himself? Unless it's a black and white
issue of fact, but it rarely is.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, February 08 2007 @ 02:14 AM EST |
| Sharks provide profesional courtesy. QED
[ Reply to This | # ]
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- Judges Also - Authored by: Anonymous on Thursday, February 08 2007 @ 02:17 AM EST
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| Authored by: MadTom1999 on Thursday, February 08 2007 @ 03:46 AM EST |
I coudnt help noticing the logo:
The Centre for Professional
Responsibility
Why the italics - is that like 'yeah maybe' or 'whatever'
or 'your not going to take this seriously so neither are we'[ Reply to This | # ]
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| Authored by: tz on Thursday, February 08 2007 @ 08:52 AM EST |
halt.org often documents where lawyers do what is clearly malpractice, but
rarely lose their licenses and it is nearly impossible to find a lawyer who will
sue another lawyer no matter how egregious the malpractice is (but they will sue
doctors if you've gotten pain and suffering from a inadequately treated
hangnail).
The ABA is a trade guild. A union. A monopoly. Worse than Microsoft as there
is no Linux alternative. If I want to go to court, they won't let me unless I
have a lawyer. Simple legal documents paralegals can easily do (for far less
money - stuff that is fill in the blank and give to the clerk like simple wills,
uncontested divorces, etc.) - I still need a lawyer.
Where is the OpenLaw? It doesn't exist. They fine and throw anyone in jail who
tries.
[ Reply to This | # ]
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| Authored by: RLP on Thursday, February 08 2007 @ 08:54 AM EST |
I once sat through an exchange in a hotel bar in west Texas between an older,
grizzled lawyer and a youngster who'd just graduated from law school.
The kid was full of ideals and all for fighting the good fight. The old guy's
attitude was "they get the kind of law they can afford."[ Reply to This | # ]
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| Authored by: DannyB on Thursday, February 08 2007 @ 09:18 AM EST |
PJ, as much as I admire what you do here, I have to disagree with you on this.
It is perfectly reasonable for people (me) to be cynical and completely distrust
the legal system.
It's not the ideals that are a problem. It's not the very rules you point out
here that are a problem. It's not the many hard working honest judges and
lawyers.
It is the fact that there ARE bad actors and the system does NOT enforce its own
rules to punish them. The SCO case is a perfect example.
It is all well and good that the system is set up to give even the poor little
guy a chance against the big huge well funded bully. But the reality is that
too little common sense is used. This fiaSCO should have been over with two
years ago. People game the system with impunity.
What do you expect to happen to SCO and its lawyers? Will that be justice? I
think people of good conscience should be outraged.
I respectfully disagree.
---
The price of freedom is eternal litigation.[ Reply to This | # ]
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- Cynical - Authored by: Anonymous on Thursday, February 08 2007 @ 01:54 PM EST
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| Authored by: l8gravely on Thursday, February 08 2007 @ 09:24 AM EST |
| I think the problem people have with the ABA and any professional organization
which polices itself is simply:
Quis custodiet ipsos
custodes?
And this is something that the founders of the US recognized,
and is why they have the seperattion of powers among the three branches of
government.
Once there is a seperation of powers among lawyers and those
who regulate them, then we'll see a change.
I remember seeing an episode
of Boston Legal (not a good example I know...) where one lawyer (the head guy
who leans back all the time? Not Shatner...) told a lie to get a search warrant
so they could find Candace Bergman's character who had been kidnapped.
She
lambasted him later, but thanked him for doing it. Yes, a tough moral choice,
but I think it also clearly shows the slippery slope that lawyers need to stay
far far far away from. But they are human too, and tempted and seduced by the
power and money and fame.
It's the credible threat of serious consequences
that helps keep people honest. We're all weak at times, and we're all tempted
at times to take the short cut. But we're mostly deterred.
I don't feel
that the ABA is a credible deterence, because of the dilema:
Quis
custodiet ipsos custodes?
So the question I have, is how do you get a
seperation of powers and meaningul checks and balances in the profession of
law?
John
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| Authored by: tangomike on Thursday, February 08 2007 @ 09:41 AM EST |
The fact that these rules exist and are available to us makes me even more
synical. When someone breaks a custom or an unwritten rule, I can at least
accept that it's unofficial. Here we have written rules for 'officers of the
court' being flaunted outrageously. Rule of law: phooey!
In other countries the courts do actually function as these rules propose. So
it's the US system that is corrupted, and it's the US citizens who tolerate it.
Lawyers often talk as if law is a sport. Nothing to be proud of here.
---
Deja moo - I've heard that bull before.
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| Authored by: tsspdx on Thursday, February 08 2007 @ 07:49 PM EST |
| The ABA model rules of conduct and the Federal Civil Rules are different things.
The comment mistakenly conflates them.
The FCR defines the procedures used
in a civil trial in Federal court. The parties to the action, not just the
attorneys, are subject to the FCR.
OTHO the model rules aren't law.
They're just a private association's suggestions of rules that could be adopted
by jurisdictions that license lawyers. If a lawyer does violate a
jurisdiction's rules, whether during a trial or otherwise, the jurisdiction can
assess appropriate penalties on the lawyer, e.g. a fine, suspension of license,
etc. For a number of practical reasons such an action would usually not be
until after any litigation is over.
The comment's phrasing is awkward, but
seems to suggest that "it's rare...[that] anything happen to a lawyer who
blatantly violates the rules." That certainly isn't my experience. Hopefully
the comment meant that "it's rare...[that] a lawyer blatantly violates the
rules." [ Reply to This | # ]
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| Authored by: grundy on Thursday, February 08 2007 @ 08:08 PM EST |
There should be a </blockquote> between "believes is false." and "(b)" and
one less after "whether or not the facts are adverse."[ Reply to This | # ]
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