IMLA Appellate Practice Blog - July 8, 2014
Litigation offers attorneys many opportunities to choose how they will behave and what they will say. The best course is to take the high road at every opportunity. Rudeness, profanity, throwing things, hitting people, we all know how the ugliness starts and how far it can progress. A small meanness may be reciprocated, then followed by an escalation and tit for tat. Once it starts, unprofessional behavior may be very difficult to stop or to confine to one specific case.
All attorneys are held to a high standard by the law and the rules of professionalism and civility. E.g., City of Jackson v. Estate of Stewart ex rel. Womack, 939 So.2d 758, 766 (Miss. 2005) (“Attorneys should accept, without reservation, the requirement that they be held to higher standards of conduct and ‘give up what normally would be considered free speech to the public at large while appearing in Court or filing documents with the Court.’”), quoting Welsh v. Mounger (In Re Kelly), 912 So.2d 823, 828 (Miss. 2005); Daigle v. City of Portsmouth, 137 N.H. 572, 630 A.2d 776 (1993); Klein v. Seenauth, 180 Misc.2d 213, 221, 687 N.Y.S.2d 889, 895 (1993) (“A lawyer is an officer of the court and, as such, has a high duty to maintain the dignity of the legal system”); Fischer, Incivility in Lawyers’ Writing: Judicial Handling of Rambo Run Amok, 50 Washburn L.J. 365 (2011).
Some attorneys are held to a higher standard. As explained in People v. Espinoza, 3 Cal.4th 806, 820 (1992), cert. denied, 512 U.S. 1253 (1994), quoting Berger v. United States (1935) 295 U.S. 78, 88 (1935):
A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the State. As the United States Supreme Court has explained, the prosecutor represents “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve.
Many courts and standards of conduct state this higher obligation resting on prosecutors. Given their power to bring the full force of government crashing down on an individual or business, this higher standard is fully justified.
Numerous courts have adopted standards of professionalism and civility. A simple computer search brings up thousands of hits. The words differ modestly, sometimes greatly, but the essence of these rules is that attorneys should always take the high road. The ultimate uniformity of the rules is the testament to the importance of the high road to relations among attorneys and relations with the court.
Photo courtesy of Flickrby Sudhamshu Hebbar (creative-commons license, no changes made).
* This blog post was originally published in IMLA Appellate Practice Blog, July 8, 2014. Republished with permission.