my name is randy miller andi have the pleasure of addressing you today with respect to some comments for the californiayoung lawyer's association. and, it's my privilege and honor to do so. i am a 30 plus year lawyerand happen to be affiliated with the committee on professional liability insurance as partof the state bar program and have been its chair for the last 3 years. and, i chose atopic that i thought would be helpful to newer lawyers practicing in california. and, todayi want to talk about your behavior. and, when i talk about your behavior, it's not withyour family, it's not with your dog, it's not in the gym, it's not on the golf course.it's interacting with other lawyers on your matters. and, it could be anything from civillitigation to transactional work to a criminal
practice. it doesn't matter. somehow alongthe lines, lawyers got the impression that they were supposed to be the warrior lawyerand that everything counts in their advocacy on behalf of their clients. that's actuallythe public perception that we see perpetuated in media and tv. and, while there might besome truth to that, it isn't always the right way to go and the line can be crossed. and,that's what i want to talk about today is lawyer civility or perhaps the better wayto put it would be lawyer incivility. and i actually named this breaking bad, the implicationsof lawyer and civility. there's been sort of a tepid reaction by bar associations tosort of reel in lawyers whose behavior crosses the line. there now is an oath that younglawyers take, after being licensed in california,
regarding their obligation to remain civiland dignified at all times. it remains to be seen how that's going to be played out,what sort of implications it'll have on, perhaps, reeling in lawyer's conduct. there are severalcounty bar associations that have come up with rules that are actually quite wonderfuland quite effective with respect to the types of civility that they expect lawyers in thatbar to follow dealing with things like extensions and returning phone calls and those normaltypes of courtesies that are out there. other than that, it's not a highly regulated areaof the law. so, for some lawyers, they look at it as an opportunity to exploit. some ofthese cases get a lot of press. lawyers confronting each other in court or on the street or indepositions, but, it doesn't necessarily have
to be in public. it could be in correspondence,it could be telephone calls, it could be, really be in any setting. the purpose of myremarks here today are to attempt to sort of set a tone and perhaps even set a lineto be drawn with respect to what is courteous and dignified and civil conduct between adversariesin a matter and what is not? there are many implications to lawyer incivility. and, theyrange from everything implications in the case to implications to your client to implicationsto expense that are incurred in the case, and, actually, for future liability of thelawyer who crosses the line. and, i want to just go through these one by one and sharewith you, with my 30 years of experience, what i've seen, and more recently, what i'veread when these cases get to the point where
they become publicized. so, here's a, here'sa few of the implications that you can have when a lawyer's conduct, whatever that mightbe, hostility, confrontation, assault, bad language, profanity, just a lack of dignity,a lack of respect, and a lack trading courtesies in a case. one is, is that you can have courtsanctions. and, if you're a civil litigator, you know that there are lots of opportunitiesto interact with opposing counsel in case, in cases, a lot of this comes during courseof discovery, it comes in the course of law in motion regarding discovery and depositionsis really sort of a prime arena for lawyer pugilism. and so, it's in that setting that,if these matters are eventually brought to a court's attention, they can result in courtsanctions. discover motions, the court always
has the ability to assess sanctions if itfeels as though counsel's actions were not in good faith. and, i've seen plenty of exampleswhere motions are brought before the court with respect to answers in a deposition. and,the court will look at the transcript and figure out that one lawyer was, perhaps, takingan unreasonable position, even a hostile position. there was a case reported recently in a lawfirm i'll leave out, but it's a matter of a public record of a lawyer actually confrontinganother lawyer during the course of a deposition wagging a finger in his face, calling himnames, profanity, and, i think, there was actually a slap to the face. so, it actually,potentially, constituted assault. that lawyer was sued and the court, ultimately, felt thatit wasn't the sort of irrational unreasonable
behavior that would provide the basis fora civil assault charge. perhaps, that's, sort of, a testament to where the line should be.so, number one is court sanctions. and, that can be costly to you. it's not something thatyou can pass, ethically, on to your clients. so, that's a check that you or your firm willhave to write if your behavior crosses the line there. state bar referrals, number two,is another implication to bad behavior. if an opposing lawyer or, frankly, a client ora member of the public or a judge feel as though the conduct of a lawyer was unethicalor was too aggressive or was discourteous or just happened to not display the normalamount of integrity, you can be reported to the state bar. and, the state bar can investigateand possibly subject you to discipline down
the road. that's, obviously, a very seriousconsequence and it goes on your public record. and, anybody that wants to look it up on thestate bar website can find that you had prior state bar disciplinary actions. the civilliability, what i just discussed was a case that happened to make its way into the systemwhere one lawyer sued another lawyer for assault. it can actually get to that point. that'sexpensive. i presume that, if you're working for a law firm that is employing you, theywill be none too happy that you've put yourself and the firm in that position. it could alsorelate, it also can amount to poor relationships with opposing counsel, obviously to the extentthat this behavior is between two lawyers. it's just going to create a paw over the caseand it's going to, certainly, affect your
ability to work rationally, capably and productivelywith the other lawyer. you're not doing your clients any favors by casting that sort ofattitude on a case because you're not going to be able to settle the case, likely, ifyou can't agree on how to relate to each other. it might also relate to client expenses becauseit becomes more expensive, in a case, where it's very heated and there's a lot of unnecessarywork that is done and you might find yourself with an upset client. number five is the impactin a subsequent legal malpractice case. if the case turns out poorly, you might end upbeing sued by your client. well, who do you think is, perhaps, your best witness in thecase in support of the work you did would be the opposing lawyer. the opposing lawyeris a built in percipient witness. if you have
a great relationship with that lawyer, thatlawyer's more apt to come to your rescue in a legal malpractice case, testify on yourbehalf that you were competent, that you were efficient, and that you approached the casewith the right amount of advocacy. number six is your conduct could also impact a subsequentmalicious prosecution case. if you are sued by the opposing party because you instigateda case without probably cause, your conduct, i guarantee you, is going to be exhibit a.if you write a nasty letter, that could be the evidence of malice in a malicious prosecutioncase that is, otherwise, a very difficult element to prove. but, you hand them a giftwhen you write them a nasty letter because it's evidence or at least some evidence ofmalice. it could impact your reputation and
your business. it could impact your marketabilityand your productivity, number nine. frankly, it could impact your job satisfaction andyour mental health and other aspects of your life if you are that tightly wound that youcan't control yourself civilly in that sort of arena. and, i suspect, there probably isdeeper problems. and, what i wrote last and i took this from the movie caddy shack isthat, on your death bed, you will not receive total consciousness as a result of your hostilebehavior in a case. so, my closing remarks are be strident, be intelligent, be a zealousadvocate on your client at all times. but, you can do so in a way that is honorable,done with integrity, done in a dignified and a civil way. and, if you adopt those rules,you're going to have a very successful career.
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