From the Editor's Desk

Passion With Professionalism

by Jay Benson. The Missouri Trial Attorney, a publication of the Missouri Association of Trial Attorneys, Volume XXIII, Number 2. Summer 2005, pp.3

 

Oliver Wendell Holmes believed that "a lawyer can try a case like a gentleman without giving up any portion of his [or her] energy and force."[1]  Justice Holmes describes a lawyer practicing with passion and zeal without sacrificing professionalism, civility and courtesy.   

A 21^st century lawyer, Scott Turow, also recognized the duality of our role: "The lawyer's job in practice is to be on one hand the impassioned representative of his client to the world, and on the other the wise representative to his client of the legal system and the society, explaining and upholding the demands and restrictions the system places on them both."[2]

            The Preamble to the Rules of Professional Conduct, adopted by the Supreme Court of Missouri, likewise provides that "[a] lawyer is a representative of clients. . . As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system."[3]  At the same time, the Preamble imposes certain duties upon us as "officers of the court":

  "A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others.  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."[4]

            By characterizing lawyers as both "zealous advocates" and "officers of the court," a dual conduct system is established that blends institutional and ethical responsibilities.  Although at times the two models may seem to be in conflict, every Missouri lawyer is simultaneously charged to be a "representative of clients, an officer of the legal system and a public citizen having special responsibilities for the quality of justice."[5]                    

            E. Richard Webber, United States District Court Judge for the Eastern District of Missouri, authored an article earlier this year entitled "Random Acts of Professionalism: A View from the Bench."  With Judge Webber's permission, his list of ten suggested "do's" and ten suggested "don'ts" are reprinted below.

Judge Webber's suggestions will no doubt remind each of us of scenarios from our personal experiences in the practice of law.  Unfortunately, we can all recall incidents where a lawyer's lack of professionalism lends credence to Judge Webber's warnings.  But his positive suggestions will also bring role models to mind; those lawyers whose passion and skill are matched by their exemplary conduct in the courtroom and the office.  Are we in turn providing the benefit of that example to our fellow lawyers? 

Retiring Supreme Court Justice, Sandra Day O'Connor, in her book, The Majesty of the Law, addresses directly the relationships between lawyers:

When lawyers themselves generate conflict, rather than addressing the dispute between the parties they represent, it undermines our adversarial system and erodes the public confidence that justice is being served.  Greater civility can only enhance the effectiveness of our justice system, improve the public's perception of lawyers, and increase lawyer's professional satisfaction.  I fear that we have lost sight of a fundamental attribute of our profession, one that Shakespeare described in The Taming of the Shrew.  Adversaries in law, he wrote, "strive mightily, but eat and drink as friends." 

 

As lawyers engaged in a common business and intellectual endeavor, we serve our clients, but we also serve each other. 

Remember Judge Webber's maxim: "Every day presents new opportunities to show the World all that is good and right about being a lawyer."   And Mark Twain's caveat: "Always do right; this will gratify some and astonish the rest." 

 

________________________________________

The Missouri Bar

RANDOM ACTS OF PROFESSIONALISM

March 16, 2005

A View From The Bench

E. Richard Webber

United States District Judge

Eastern District of Missouri

 

Ten suggestions intended to promote professionalism in practice before the court.

1.         Read Federal Rules of Civil Procedure 26-33 and recent cases interpreting those Rules.  Know the difference between evidence that is discoverable and evidence that is admissible.

 

2.         Make 26(a)(1) disclosures timely and in the spirit of the Rule that provides for full and complete disclosure except for privileged information.

 

3.         Remain seated at counsel table until called upon by the Court to address the Court.

 

4.         Address all arguments to the Court and not at opposing counsel.

 

5.         When issues in a case are complex, ask the Court for timed oral arguments if there is a reasonable expectation that arguments will aid the Court in resolving an issue or issues.

 

6.         In Federal Court, when preparing the Joint Scheduling Plan, use reliable dates for all pre-trial matters and the trial to avoid asking for extensions of time or continuances.

 

7.         When the inevitable occasion arises when it is necessary to ask for an extension or a continuance, be honest in advancing the reason, e.g. scheduling issues in other cases, poorly planned in time allowance or just forgot.

 

8.         Be courteous to the court reporter, court clerk, bailiff and especially opposing counsel.

 

9.         Recognize that jurors are intelligent, well-informed individuals that do not appreciate being "spoken down to," so repeating the same point twelve times will not be beneficial.

 

10.       Always remember that an advocate can fully represent a client by demonstrating every day in private life, in pre-trial matters and in court that she or he is a member of a chosen profession that is being watched by the public, opposing counsel, clients and Court, and every day presents new opportunities to show the World all that is good and right about being a lawyer.

 

Ten suggestions of behavior to be avoided by lawyers;

 

1.         A "scorched earth" approach in dealing with opposing counsel in discovery, other pre-trial matters and trial of the case.

 

2.         Failure to deliver to opposing counsel in compliance with Rule 26(a) disclosures, in answers to interrogatories or requests for production, material which the spirit of discovery rules by plain language requires be produced.

 

3.         Requiring opposing counsel to file a motion to compel to get discovery which under the Rules of Civil Procedure is clearly discoverable.

 

4.         Failure to remain seated at counsel table while opposing counsel is arguing a motion or addressing the Court.

 

5.         Sending boxes of material to opposing counsel rather than making specific reference to materials in an orderly fashion so the material is identifiable with specific discovery requests.

 

6.         Calling a judge during a deposition to request a ruling on whether a witness is required to answer a question.

 

7.         Receiving an adverse ruling from a Court, then proceeding to argue a matter to a jury in direct contravention of the ruling.

 

8.         Telling demeaning lawyer jokes during voir dire in an attempt to gain favor with the jury.

 

9.         Telling the jury of disappointment with opposing counsel in behaving in some way which attempts to show that opposing counsel was acting in an unprofessional manner.

 

10.       Using any opportunity to discredit the profession in or out of court.