Educating Opposing Counsel

Do you do it and to what extent?

A Trial Lawyer’s Ethical Duties to his Client, all Victims and the Civil Justice System

Presented by

ROBERT L. POTTROFF
320 Sunset Avenue
Manhattan, KS 66502
785-539-4656

AAJ 2007 Annual Convention
Chicago
July 14 – 18, 2007

INTRODUCTION

We have all had occasions to engage in brilliant oratory to educate opposing counsel on some relevant topic in one of our cases. Oftentimes, this occurs almost automatically as an impromptu presentation triggered during exchanges with opposing counsel. There may be times when educating opposing counsel is an appropriate part of your case, but those occasions are rare. Great caution must be exercised before making the decision to “educate” opposing counsel on any point that your client may see as work product.

This presentation will analyze why trial lawyers have a compelling need to educate and persuade. It will also point out why opposing counsel is not the appropriate audience for education and persuasion in most circumstances. Finally, there will be a suggestion that the need to educate and persuade can be better satisfied by appropriately channeling that energy into the types of education we are ethically bound to advance.

Nothing in this presentation is intended to negate the duty of full disclosure under the discovery code, nor prevent full compliance with the Code of Civil Procedure. Instead, this presentation will specifically target the seemingly uncontrollable urge of trial lawyers to educate and persuade an inappropriate audience: your opponent. It must be pointed out that this issue also does not include oral or written arguments intended to persuade the trier of fact.

I. Rules Governing Ethical Duties

There are many sources of rules applicable to the ethical duties of attorneys. Some rules are binding and must be followed while others are general guidelines for attorney conduct. The following list briefly describes the sources of rules governing ethics.

1. Model Rules of Professional Conduct

€“ Adopted by the House of Delegates of the American Bar Association in 1983. To date, California, Maine, and New York are the only states that do not have professional conduct rules that follow the format of the ABA Model Rules of Professional Conduct. New York follows the predecessor ABA Model Code of Professional Responsibility, and California and Maine developed their own rules.

2. Code of Professional Responsibility [a/k/a/ Canons of Professional Ethics]

• These were the original rules of ethics. In New York, they still serve as a basis for disciplinary action, but for all other states, they are merely a guide for attorney conduct.

3. Ethical Considerations

• These considerations were adopted by the American Bar Association at the time the Model Rules of Professional Conduct were adopted. They are non-binding rules that give guidance for attorney conduct. The terminology section of the Rules of Professional Conduct defines “Ethical Considerations” as “non-enforceable rules but they are statements of policy for the guidance of lawyers when deciding upon a course of action not controlled by law or Disciplinary Rules.”

4. Preamble and Comments Accompanying the Model Rules

• The Prefatory Rule to the Rules of Professional Conduct adopts in principle preamble and comments accompanying the model rules. The preamble and comments accompanying the model rules therefore gives additional guidance concerning attorney conduct. Most states have either adopted the comments or provide them for guidance.

5. ALI Restatement (Third) of the Law Governing Lawyers

€“ This text comprehensively addresses the constraints imposed upon lawyers by law – that is, the official norms enforceable through a legal remedy administered by a court, disciplinary agency, or similar tribunal. The Restatement is a good complement to the Model Rules and Model Code.

II. The Compulsion: Educating Opposing Counsel

On occasion, the issue will arise as to whether or not you need to educate opposing counsel on certain issues in a case when it is obvious that the other side just does not get it. It may be your opposition’s failure to recognize the significance of factual evidence, the impact of emotional evidence, or fully comprehend potential legal issues. There is no limit on the number of lessons that you may want to “teach” to the opposition. The real limitation arises when you consider “why” you would ever do so. The analysis of whether or not to offer a free education to your opponent must begin with the model rules of professional conduct. There are four rules that have particular application:

1. Your duty of candor toward the tribunal.
2. The duty of fairness to opposing counsel.
3. The duty to zealously represent the duty of your client.
4. Duty to maintain confidentiality of information.

A quick glance at the relevant rules of professional conduct make it clear that the duties owed to opposing counsel are very limited. You cannot destroy evidence, present false evidence, knowingly violate rules of the tribunal and/or abuse the discovery process. There is clearly no “duty” to educate your opposing counsel on issues in your litigation. Likewise, there are no duties to the court that would require you to educate opposing counsel. Finally, educating opposing counsel will certainly require the use of “information relating to the representation” of your client. Revealing such information can be problematic. Nevertheless, there are times that good trial lawyers are driven by the overpowering urge to put opposing counsel in their place. They may feel the need to expose a ridiculous or frivolous position, or simply feel compelled to reaffirm the merits of their own case. No matter the reason, extreme caution must be exercised before you speak. Before disclosing anything to opposing counsel about the relative strengths or weaknesses of your case, strategies, or other information that may “educate” opposing counsel, you must stop and determine why that would occur.
In the following situations, just don’t do it:

1. To show off your knowledge;
2. To satisfy that part of your ego that requires stroking;
3. To humiliate or embarrass your opponent;
4. For the sake of “fairness”;
5. Because your opponent is struggling;
6. As a tool to establish a good working relationship;
7. Because your opponent is a nice person;
8. To make sure the other side “understands” the real issues of the case;
9. As an attempt to put your opponent “in their place”;
10. To fulfill the overpowering need to teach and improve our system.

Ninety-nine percent (99%) of the time you get the urge to “educate” opposing counsel, the urge should be overcome. There are a very few situations where you may appropriately engage in the process of educating opposing counsel. Those are as follows:

1. In pleadings necessary to frame your case;
2. In oral arguments designed to persuade the trier of the fact;
3. In settlement negotiations when it becomes necessary for the opposition to appropriately evaluate your case.

All three of the situations mentioned above are required “in order to carry out the representation” of your client as anticipated in Rule 1.6. Any use of client information outside these areas is suspect. Even in the setting of settlement negotiations, a mediator may be utilized to minimize the amount of client information that must be revealed to achieve maximum recovery.

It has been suggested that educating opposing counsel may be part of the larger duty to improve our legal system. That issue will be discussed in detail below.

III. A Lawyer Should Assist In Improving the Legal System:

The Adversarial System

“Law is the business to which my life is devoted and I should show less than devotion if I did not do what was in me to improve it.”

Oliver Wendell Holmes

Canon 8 very simply reads: “a lawyer should assist in improving the legal system.” To most this would be a “no brainer,” but all too often we get caught up in all the other issues of our practice and forget the basics of why we are here. Canon 8 provides a “general statement of required professional conduct” for every attorney: we should all work to improve the legal system.

The preamble to the Rules of Professional Conduct states that “a lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice. A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious.” It would be hard to justify any duty to educate opposing counsel based upon this language. Increasing your opponent’s knowledge of the case could also be looked at as anything but “harmonious” with trying to defeat that opponent. The Rules of Professional Conduct discuss duties to the client, the Court and the public. The duties to educate are clearly aimed at public education or improving our legal system. EC 8-9 states that “the advancement of our legal system is of vital importance in maintaining the rule of law…and lawyers should encourage, and should aid in making, needed changes and improvements.”

A lawyer is an officer of the legal system. The Preamble to the Rules of Professional Conduct states “that a lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.” That process is an adversarial process. You must recognize and uphold the adversarial process.

The nature of our adversarial system requires our full focus on the battle. All decisions must be in line with the advocacy of your client’s cause. Our goal is to win. The deck is already stacked against us. There is no room to provide the other side any additional help. If you feel an additional need to educate, do so in the forum required by the Rules of Professional Conduct.

V. Your Duty to Educate: Tort Reform

Rules of Professional Conduct Rule 6.4 specifically provides that a lawyer “may serve as director, officer or member of an organization involved in reform of the law or its administration.” If the lawyer knows the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer must disclose this benefit. The Rules of Professional Conduct encourage attorneys to participate in the reformation of the law, which is a basic duty of every attorney under Canon 8 if you define “improving” the law as “reforming” the law.

A lawyer, as public citizen, has a special responsibility for the quality of justice. The Preamble to the Rules of Professional Conduct states:

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

According to the Preamble of the Rules of Professional Conduct:

The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. Self-regulation also helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Neglect of these responsibilities compromises the independence of the profession and the public interest, which it serves.

“Tort reform” is said to have its beginnings in the progressive era after World War I. During this era, the law experienced progressive tort reform aimed at removing the rules protecting the interests of defendants in civil actions. In the first half of the twentieth century, tort laws favored civil defendants so progressive tort reformers fought to even the field for plaintiffs. Through this era up until the late 1960’s, plaintiffs obtained more rights which resulted in improvements for plaintiffs such as strict liability. See “Common Sense” Legislation: The Birth of Neoclassical Tort Reform, 109 Harv.L.Rev.1765, 1765-1768 (1996); wherein it was recognized that this “progressive” tort reform began to decline in the late 1960’s due to increased premiums placed on health care providers. There was another “tort reform” in the late 1970’s driven by a concerted effort on behalf of manufacturers to cut costs. Then in the 1980’s the “insurance crisis” fueled another round of “tort reform.” This historical account of the “birth of tort reform” ignores the fact that tort reform existed during formation of our government. Following the Battle of Lexington the British presented the Continental Congress an Offer of Reconciliation. On July 31, 1775 the Continental Congress rejected this offer upon the advice of a committee consisting of Benjamin Franklin, Thomas Jefferson, Richard Henry Lee, and John Adams. This message of rejection included the following statement:

We are of [the] opinion [that] the proposition is altogether unsatisfactory because…it does not propose to repeal the several acts of Parliament…taking from us the right of trial by jury€¦in cases affecting both life and property… J. Kendall Few, In Defense of Trial by Jury 170 (American Jury Trial Foundation 1993).
The right to a jury trial is one of the factors that lead the American Patriots to the Revolutionary War.

VI. Right to Trial by Jury

Law is a magic mirror in which we see reflected not only our own lives, but also the lives of those who went before us.
-Oliver Wendell Holmes

People against tort reform argue that tort reform is a step in the direction of taking juries out of the civil litigation process. Juries have been an integral part of our legal system since before the founding of our country. There is much historical support for our duty to maintain civil trials by jury.

The first argument for trial by jury is that it is the basis of our freedom and democracy. Without this right, the common man would be judged, not by a panel of his peers, but by someone in a position of higher authority. Our founding fathers believed the right to trial by jury was an important piece to our freedom.

In suits at common law, trial by jury is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.
-James Madison (1789)

Trial by jury and the dependence of taxation upon representation, those cornerstones of liberty, must be preserved. Trial by jury is our birthright; who in opposition to the genius of United America, shall dare to attempt its subversion?
-John Dickinson (1788)

This was the first signal of North American Union. The struggle was for chartered rights €“ for English liberties – … for trial by jury – the habeas corpus and Magna Carta. But the English lawyers had decided that Parliament was omnipotent – and Parliament in their omnipotence, instead of trial by jury… enacted admiralty courts in England to try Americans for offenses charged against them as committed in America – instead of the privileges of Magna Carta€¦

English liberties had failed them. From the omnipotence of Parliament the colonist appealed to the rights of man and the omnipotence of the god of battles€¦
Independence was declared. The colonies were transformed into states. Their inhabitants were proclaimed to be one people…[with] all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. Their rights, the natural rights of mankind€¦
-John Quincy Adams (1839)

Another argument for trial by jury is that it is the fairest way to conduct a trial. A group of 12 disinterested people are chosen at random, given facts, and make a decision based on these facts. Many of our founding fathers believed in the fairness of the jury system after observing historical accounts of dishonest judges.

The jury system has come to stand for all we mean by English justice. The scrutiny of 12 honest jurors provides defendant and plaintiff alike a safeguard from arbitrary perversion of the law and preserves the old principle that law flows from the people.
-Sir Winston Churchill (1956)

I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of it constitution.
-Thomas Jefferson (1788)

The civil jury trial is preferable to any other and ought to be held sacred.
-Virginia Declaration of Rights (1776)

The jury is adapted to the investigation of truth beyond any other system the world can produce. A tribunal without juries would be a Star Chamber in civil cases.
-Elbridge Gerry (1787-1788)

VII. Current Tort Reform Debate

The current round of tort reform deals with the rising cost of malpractice insurance for physicians, litigation costs for gun manufacturers, pharmaceutical companies complaining about class action lawsuits and various other special interest groups with their own unique complaints. You can see the debate over tort reform is a hot topic by typing “tort reform” into an Internet search engine and observe the number of hits. The number is overwhelming. The people supporting today’s tort reform place blame on “greedy” personal injury attorneys for the increased cost of insurance. Attorneys are blamed for an increase in the amount of litigation, an increase in frivolous lawsuits, and a huge increase in the amount of jury awards. These tort reform groups are in support of legislation to cap damages and limit claims.

On the other side of the debate are people opposing modern tort reform. This group argues the number of lawsuits has actually declined and the ridiculous jury awards seen on the evening news are misleading because details are often left out. They place the cause of rising malpractice insurance rates on the insurance companies. This side of the argument opposes statutory caps on damage amounts because they are afraid some victims may be under compensated for their injuries. The progressive tort reformers also argue the amount in damages are awarded by juries and that juries should be allowed to continue making decisions on damages rather than politicians.

This self-government imposes a duty on the legal profession to uphold higher standards on lawyers so that we may retain this self-government. Lawyers have a duty to the general public under Canon 8 to improve the legal system. Canon 8 requires attorneys to take an active role in the preservation of our law if the profession wants to maintain its independence. The Preamble argues “Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system.” If the Bar sits on its hands and watches Congress legislate away fundamental rights such as juries in civil trials, they are violating Canon 8 by not protecting the public interest. If the Bar does not fight to protect the rights our founding fathers believed in and were willing to die for, who will?

Just remember the debate itself is healthy. We want to hear the debate. We need the controversy. Sure we can do a better job of self-governing our profession. Greed has driven cases that may end up hurting our profession as a whole. Some cases should not get filed. We need to recognize these issues and address them. If we do not address the issues, somebody else will. Too many lawyers are pushing the rules of common sense and professionalism within advertising. We have not reacted to correct the problems caused by sleazy advertisers. There is much to do and the battle will never end. It is your watch now. Just remember:

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When politicians, special interest groups,
large corporations, insurance companies and other power brokers quit complaining about juries
and trial lawyers,
then it will be time to worry
about our system of justice.

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