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6.1 Special Issues in Advocacy
1. Do you think these guidelines should be added to rules or regulations?
I believe that the guidelines discussed in Judge McMaster’s Powerpoint should be added to the existing Rules of Professional Conduct. For me, the takeaway from the Powerpoint is that the term “civility”, in the legal context, is not limited to etiquette and good manners. Rather, it encompasses a wide range of behaviors–from blatant rudeness to creating unnecessary delays in an attempt to “win at all costs”. I appreciated that the guidelines discussed in the Powerpoint were candid and clear examples of uncivilized behavior and unethical conduct. They serve to clarify the expectations outlined in the Rules of Professional Conduct, and can act as a guidebook for legal professionals on what not to do and how not to act. I feel that Judge McMaster’s “Do This, Not That” approach to behavioral standards is what the legal profession needs more of.
The section I found most interesting in the Powerpoint was Section 9: Discovery. The section stresses the importance of playing fair, not using discovery as a tool to harass or abuse, and not engaging in childish litigation tactics to throw your opponent off his/her game.
In his publication Rambo Litigation: Why Hardball Tactics Don’t Work, Robert Sayler described what he called “Rambo Litigation” tactics, which he defined as being characterized by the following:
• A mindset that litigation is war and that describes trial practice in military terms.
• A conviction that it is invariably in your interest to make life miserable for your opponent.
• A disdain for common courtesy and civility, assuming that they ill-befit the true lawyer.
• A wondrous facility for manipulating facts and engaging in revisionist history.
• A hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact-finding.
• An urge to put the trial lawyer on center stage rather than the client or his cause.
I located an article from the March 2016 Orange County Bar Magazine by Scott B. Garner, entitled Civility Among Lawyers: Nice Guys Don’t Have to Finish Last. In the article, the author notes that lawyers often confuse zealous advocacy with incivility, but the two are not one in the same. Garner explains that the antithesis of civility are the “Rambo style” litigation tactics discussed by Sayler. Garner points out the dangers of rouge lawyers, and how an uncivil attorney can harm a client’s case, increase a client’s fee, and make the practice of law unpleasant.
2. How can you, as a paralegal, ensure your behavior reflects the ethics and civility guidelines?
In closing, I think there are a variety of things I can do to help ensure my own behavior reflects civility and ethical guidelines, but not engaging in Rambo style litigation tactics will always be at the top of my list.
http://www.ocbar.org/All-News/News-View/ArticleId/1720/March-2016-Civility-Among-Lawyers-Nice-Guys-Don-t-Have-to-Finish-Last
https://books.google.com/books?id=D8_dRjjI9hIC&pg=PA79&lpg=PA79&dq=Rambo+Litigation:+Why+Hardball+Tactics+Don%E2%80%99t+Work&source=bl&ots=QUzG0cIyDr&sig=ACfU3U0AQju4zn7PKtJfVdotVka-0vjd6Q&hl=en&sa=X&ved=2ahUKEwih9NL4zefkAhVdJjQIHTkEDwYQ6AEwAnoECAkQAQ#v=onepage&q=Rambo%20Litigation%3A%20Why%20Hardball%20Tactics%20Don%E2%80%99t%20Work&f=false
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MARGIE MILAN – FORUM 6.1 DISCUSSION BOARD POST
To begin with, I found In the Matter of Genis to be highly interesting and insightful. The circumstances in the State Bar of California case underscores the sheer importance of adherence to the State Bar’s Business and Professions Code and the Rules of Professional Conduct. Failure to do such leads to consequences and sanctions should the offending attorney be found guilty. All attorneys are subject to these rules, no matter the skill, influence nor expertise. In the case of Genis, a lawyer that is considered skillful albeit one who uses aggressive litigation style to his client’s advantage, is found guilty by the State Bar of California as a transgressor of the Rules of Professional Conduct. The Court found that should his conduct evade disciplinary actions, the function of the legal system is obstructed and the integrity of the legal profession is undermined. Thus, the Court found that a 30-day actual suspension and a two-year probation is an impartial sanction.
1. Do you think these guidelines should be added to rules or regulations? Defend your answer, and include links to relevant…
The Civility and Ethics powerpoint presentation by Hon. Loren McMaster provided imperative guidelines which I believe should be added to the existing rules and regulations governing professional conduct. The section I found to be the most interesting is “Section 14 – Conduct in Court”. The section stresses the importance of maintaining respect for and confidence in a judicial office. The article by Henry Gorbein entitled “How Should Your Attorney Act in Court?” provides helpful insights on the matter. Foremost of which is the recommendation to be courteous. The author states, “You may not like or agree with the judge, but the position is one that commands respect. Always be respectful in court. Even if you do not like or respect the judge, never show this in court. You are only undermining your position and your clients.” Such proposition goes hand in hand with the principles introduced by Hon. McMaster and ensures that clients and witnesses alike know what behavior is expected of them in court.
2. How can you, as a paralegal, ensure your behavior reflects the ethics and civility guidelines?
Section 4 of the Civility and Ethics guidelines talks about being civil in written work. In this regard, a paralegal working on a legal document, whatever it may be, must never malign or belittle opponents or their position. What is more, in order to ensure a paralegal’s behavior reflects the ethics and civility guidelines, a paralegal must treat opposing counsel with respect, regardless of the paralegal’s feelings or disposition. The article entitled “Legal Writing Tip: Never Insult Your Opponents or Their Arguments”, discusses important points on the matter at hand. It quotes the Code of Pretrial Conduct which states that
“Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under the controlling substantive law. (§ 3(b).)
Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. (§ 4(b).)”.
The article concludes by stating that “readers naturally view a person’s writing as a revelation of who they are as a human being, and that it is human nature to find the person we like the most to be the most convincing. Judges, after all, are human beings, too. So make what you write for them or say in their presence reflective of your good character and dignity”. A paralegal therefore must conduct his or her writing with integrity, ethics and morals.
Week 6 Reply
Hello Valerie, I like how you analyzed the discussion topic, and especially your research through more than one article. It is true that legal officers should avoid childish litigation tactics such as in the case of Daryl Genis. Knowing when one is over their head is quite important. When doing my research on the topic, I addressed the issue of avoiding conflict with fellow legal officers and especially court judges. Sometimes, it is best to keep calm rather than to show arrogance because it reflects unprofessionalism when a lawyer does not recognize their turf. That is most importantly why the guidelines by Judge McMaster should be included to the rules of Professional Conduct. I like how you introduced Rambo litigation tactics into your research and went ahead to detail the characteristics of such a strategy.
Hello Margarita, likewise, I agree with the discussion posts in the same perspective as you. A ruling of 30days suspension and 2years probation as a penalty to Genis is exactly what he needed to understand what professional conduct means. Even though he played by the law, he was arrogant and rude to his superiors. As a legal officer, one is expected not only to behave according to the rules but also think ethically, I like the way you analyze the matter of the guidelines by Hon. McMaster being added to the rules of professional conduct as well. Section fourteen hold vital information for anyone present at a court, stating the expected behavior. it is important that judges receive the respect they deserve even if the lawyer does not like them. I believe it is also important for paralegals to behave in a similar manner and respect each other.
