Transcript Presented by Pretzel & Stouffer Attonreys:

From Rule 201(k) to the ARDC
1
The Meaning of Professionalism
“To me, the essence of professionalism is a commitment to
develop one’s skills to the fullest and to apply that responsibly to the
problems at hand. Professionalism requires adherence to the highest
ethical standards of conduct and a willingness to subordinate narrow
self-interest in pursuit of the more fundamental goal of public service.
Because of the tremendous power they wield in our system,
lawyers must never forget that their duty to serve their clients fairly
and skillfully takes priority over the personal accumulation of wealth.
At the same time, lawyers must temper bold advocacy for their clients
with a sense of responsibility to the larger legal system which strives,
however imperfectly, to provide justice to all.”
-Justice Sandra Day O’Connor
2
Rule 8.3:
or
Reporting Professional
Misconduct
(a) A lawyer who knows that another lawyer
has committed a violation of Rule 8.4(b)
Rule 8.4(c) shall inform the appropriate
professional authority. . . .
(b) This Rule does not require disclosure of
information otherwise protected by the
attorney-client privilege . . .
3
Rule 8.4:
Misconduct
(a) It is professional misconduct for a lawyer
to:
(b) commit a criminal act that reflects
adversely
on the lawyer’s honesty,
trustworthiness, or
fitness as a lawyer in
other respects.
(c) engage in conduct involving dishonesty,
fraud,
deceit or misrepresentation.
(d) engage in conduct that is prejudicial to the
administration of justice. . . .
4
Rule 8.4:
Misconduct
(4)engage in conduct involving dishonesty, fraud,
deceit or misrepresentation;
(5)Engage in conduct that is prejudicial to the
administration of justice…
5
What’s The ARDC?

“ARDC” stands for “Attorney Registration & Disciplinary
Commission of the Supreme Court of Illinois.”

Created by the Supreme Court in 1973 to act as its arm for the
registration and the discipline of attorneys who are practicing
law or who are admitted to practice in Illinois. In re Mitan, 75
Ill.2d 118, 123-124 (1979).

ARDC carries out the Supreme Court’s sole authority to license
and discipline attorneys who practice law in Illinois. In re
Harris, 93 Ill.2d 285, 291 (1982).
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The Rules

Rules of Professional Conduct – Do’s and Don’t ‘s for Illinois
attorneys.
 RPC +/or Supreme Court Rule 770 = Bases for ARDC action

Rules of the ARDC.
 Equivalent to the Code of Civil Procedure and local court
rules.
 Local Federal Court Rules:
 Federal District Court Rules
 7th Circuit Standards for Professional Conduct
7
Types of Discipline
Supreme Court Rule 770
 Spells out the eight types of discipline that can be imposed. They
range in severity from reprimand – which is the only discipline
that can be imposed by the Hearing Board or the Review Board
without confirmation by the Supreme Court – to disbarment.
Supreme Court Rule 772
 Provides for probation and for imposing conditions on an
attorney’s practice of law.
Supreme Court Rule 774
 Provides for the imposition of an interim suspension while either
an ARDC investigation or a criminal investigation or case is
pending.
8
Discovery Disputes
and their Ethical
Implications
9
Preambles of Professional Rules –
a.
Illinois Rules of Professional Conduct:
[5] . . . 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.
[7] . . . [A] lawyer is also guided by personal conscience and the approbation of
professional peers. A lawyer should strive to attain the highest level of skill,
to improve the law and the legal profession and to exemplify the legal
profession’s ideals of public service.
[9] . . . Virtually all difficult ethical problems arise from the conflict between a
lawyer’s responsibilities to clients, to the legal system and to the lawyer’s
own interest in remaining an ethical person while earning a satisfactory
living. . . . These principles include the lawyer’s obligation zealously to protect
and pursue a client’s legitimate interests, within the bounds of the law, while
maintaining a professional, courteous and civil attitude toward all persons
involved in the legal system
10
Preamble: 7th Circuit Standards
for Professional Conduct
i.
A lawyer’s conduct should be characterized at
all times by personal courtesy and professional
integrity in the fullest sense of those terms. . . .
[administration of justice is] designed to
resolve human and societal problems in a
rational, peaceful, and efficient manner.
ii.
Conduct that may be characterized as uncivil,
abrasive, hostile, or obstructive impedes the
fundamental goal of resolving disputes
rationally, peacefully, and efficiently. Such
conduct tends to delay and often to deny
justice.
11
Fairness to Opposing Party and
Counsel
Rule 3.4:
1.
A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully
alter, destroy or conceal a document or other material having potential evidentiary. A
lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement
to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal, except for an open
refusal
based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent
effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does reasonably believe is relevant or
that will
not be supported by admissible evidence . . .; or
(f) request a person other than a client refrain from voluntarily giving relevant
information to
another party unless . . . the person is a relative or employee or other agent of [the
lawyer’s]
client and the lawyer reasonably believes that the person’s interests will not be
adversely
affected by refraining from giving such information.
12
Seventh Circuit – Lawyers’ Duties to
Other Counsel
1.
2.
3.
4.
5.
6.
We will abstain from disparaging personal remarks or acrimony
toward other counsel, parties, or witnesses. We will treat adverse
witnesses and parties with fair consideration
We will not use any form of discovery or discovery scheduling as a
means of harassment.
We will take depositions only when actually needed to ascertain facts
or information or to perpetuate testimony. We will not take
depositions for the purposes of harassment or to increase litigation
expenses
We will not engage in conduct during a deposition that would not be
appropriate in the presence of a judge.
We will not obstruct questioning during a deposition or object to
deposition questions unless necessary under the applicable rules to
preserve an objection or privilege for resolution by the court.
During depositions we will ask only those questions we reasonably
believe are necessary for the prosecution or defense of an action.
13
Castillo v. St. Paul Fire & Marine
Ins. Co., 828 F. Supp. 594
(C.D. Ill. 1992)
Facts: Defendants’ attorneys attempted
to take the deposition of the Plaintiff Dr.
Castillo, “but did not get very far with it
even though it took all day and 281 pages
of transcript.” (pg. 596)
2. Plaintiff’s attorney engaged in
“deliberate frustration of defendants’
discovery attempts.”
1.
a.
Judge Baker ordered a second deposition.
14
Castillo v. St. Paul Fire & Marine Ins.
Co., 828 F. Supp. 594
(C.D. Ill. 1992)
3. Exchange at the second deposition when
defendants’ attorney attempted to use
plaintiff’s counsel’s office phone to call Judge
Baker:
Plaintiff: I would caution you not to use any telephones in
this office unless you are invited to do so, counsel.
Defense: You’re telling me I can’t use your telephones?
Plaintiff: You can write your threatening letters to me. But,
you step outside this room and touch the telephone, and I’ll
take care of that in the way one does who has possessory
rights.
15
Castillo v. St. Paul Fire & Marine
Ins. Co., 828 F. Supp. 594
4.
Judge Baker held plaintiff’s counsel in
contempt, dismissed the plaintiff’s case for
counsel’s threats of physical violence to
opposing counsel and obstruction of the
deposition, and entered an order referring
plaintiff’s counsel to the remaining three
District Judges for disciplinary proceedings.
16
Castillo v. St. Paul Fire & Marine
Ins. Co., 828 F. Supp. 594
(C.D. Ill. 1992)
Three Judge panel suspended counsel from
practice in the Central District for one year
5.
a.
b.
c.
d.
Stated that counsel was “presently unfit to continue to
practice before this court.” (pg. 599)
“Counsel’s conduct is also the most egregious example
of lawyer incivility that this Court has ever seen.” (pg.
600)
Court finds violation of Federal Rule of Civil
Procedure 30.
Court finds violation of Illinois Rules of Professional
Conduct.
17
Castillo v. St. Paul Fire & Marine
Ins. Co., 828 F. Supp. 594
Asserting a position …merely to harass another
ii. Refusing to accede to reasonable requests of
opposing counsel that did not prejudice the rights
of the client and suppressing evidence that counsel
had a legal obligation to produce;
iii. Unlawfully obstructing another party’s access to
evidence and counting on another person to do so;
iv. Engaging in offensive tactics and failing to treat
with courtesy and consideration others involved in
the legal process; and
v. Engaging in conduct prejudicial to the
administration of justice.
i.
18
Redwood v. Dobson, 476 F. 3d 462
(7th Cir. 2007)
“This is a grudge match.”
Players:
1.
2.
a.
b.
c.
d.
e.
f.
Harvey Welch – Attorney, Represented Erik Redwood in criminal
prosecution for battery
Marvin Gerstein – Attorney, represented Welch in the state law civil
claims
Erik Redwood – convicted of battery, brings claims against Welch for
ineffective assistance, also brings Section 1983 claims against Welch,
Gerstein and Assistant State’s Attorney Dobson
Charles Danner – Attorney, represented Redwood in Sec. 1983 case.
Roger Webber – Attorney, defended Gerstein in the Sec. 1983 action
brought by Redwood
Richard Klaus – Attorney, defended ASA Dobson in Sec. 1983 action.
19
Redwood v. Dobson, 476 F. 3d 462
(7th Cir. 2007)
3.
4.
Setting: Attorney Danner takes the deposition of
Attorney Gerstein.
The testimony:
Danner: Mr. Gerstein, have you ever engaged in homosexual
conduct?
Webber: Objection, relevance.
Klaus:
Join.
Webber: I believe it violates Rule 30, and I’m instructing him
not
to answer the question.
Gerstein: I’m not answering that question.
Klaus:
I join the objection.
Danner: Mr. Gerstein, are you involved in any type of
homosexual clique with any other defendants in this
action?
Webber: Same objection. Same instruction.
Klaus:
I join the objection.
a.
20
Redwood v. Dobson, 476 F. 3d 462
(7th Cir. 2007)
b.
c.
Other testimony: “first 30 pages or so of the transcript
exploring Gerstein’s criminal record—mostly vehicular
violations.”
Other testimony: “Gerstein’s troubles with the state bar.”
a.
d.
e.
f.
1991 censure and 2002 suspension
Other testimony: “whether Gerstein had been ordered to
obtain psychiatric counseling or anger management
therapy.”
“Plaintiffs say that Gerstein once gave Danner ‘the
finger.’”
Court calls the transcript “unedifying to the end.”
21
Redwood v. Dobson, 476 F. 3d 462
(7th Cir. 2007)
5.
6.
Application of FRCP 30: Rule 30(d) “specifies how
harassment is to be handled. Counsel for the witness
may halt the deposition and apply for a protective order .
. .but must not instruct the witness to remain silent. . . .
A person may instruct a deponent not to answer only
when necessary to preserve a privilege, to enforce a
limitation directed by the court, or to present a motion
under Rule 30(d)(4). (Restyled as Rule 30(d)(3) under
the 2007 amendments).
“Mutual enmity does not excuse the breakdown of
decorum… [i]t is precisely when animosity runs high
that playing by the rules is vital.”
22
Redwood v. Dobson, 476 F. 3d 462
(7th Cir. 2007)
7.
Result:
“Attorneys Danner, Gerstein, and Webber are censured
for conduct unbecoming a member of the bar; attorney
Klaus is admonished. . . . Any repetition of this
performance, in any court within this circuit, will lead to
sterner sanctions, including suspension or disbarment.”
23
Rule 4.4(a): Respect for Rights of Third
Persons
In representing a client, a lawyer shall not use means that
have no substantial purpose other than to embarrass,
delay, or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such a
person.
In re Kenneth Paul Zurek, M.R. 18164, 99 CH 45
(2002):
The attorney was disbarred for numerous violations, including the
following comment to a plaintiff at a deposition: “Come here, Lisa.
Why don’t you give me a VD like you gave me before? You can go
into that, too.”
24