Transcript CIVILITY IN CIVIL PRACTICE Thomas S. Biggs Inns of Court April 15, 2008 Judge Daniel Monaco Judge Vince Murphy Bradley S.

CIVILITY IN CIVIL PRACTICE
Thomas S. Biggs Inns of Court
April 15, 2008
Judge Daniel Monaco
Judge Vince Murphy
Bradley S. Donnelly
Maria I. Barbosa
David L. Dawson
Fitzgerald A. Frater
Jessica I. Horowitz
Angela M. Miller
Patrick G. White
Chuck Zundel
PROFESSIONALISM’S NEW
FOCUS
Bradley S. Donnelly
The Henry Latimer Center for
Professionalism
Definition of Professionalism
– As a lawyer, I will aspire . . . to achieve the
excellence of our craft . . . that permit[s] me to
be the moral voice of clients to the public – in
advocacy, while being the moral voice of the
public to clients in counseling.
OATH OF ADMISSION TO
THE FLORIDA BAR
THE GENERAL PRINCIPLES WHICH SHOULD EVER
CONTROL THE LAWYER IN THE PRACTICE OF THE
LEGAL PROFESSION ARE CLEARLY SET FORTH IN
THE FOLOWING OATH OF ADMISSION TO THE BAR,
WHICH THE LAWYER IS SWORN ON ADMISSION TO
OBEY AND FOR THE WILLFUL VIOLATION TO WHICH
DISBARMENT MAY BE HAD.
I DO SOLEMNLY SWEAR:
I will support the Constitution of the United States and the Constitution
of the State of Florida;
I will maintain the respect due to courts of justice and judicial officers;
I will not counsel or maintain any suit or proceedings which shall
appear to me to be unjust, nor any defense except such as I believe
to be honestly debatable under the law of the land;
I will employ for the purpose of maintaining the causes confided to me
such means only as are consistent with truth and honor, and will
never seek to mislead the judge or jury by any artifice or false
statement of fact or law;
I will maintain the confidence and preserve inviolate the secrets of my
clients, and will accept no compensation in connection with their
business except from them or with their knowledge and approval;
I will abstain from all offensive personality and advance no fact
prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which I am charged;
I will never reject, from any consideration personal to myself, the cause
of the defenseless or oppressed, or delay anyone's cause for lucre
or malice. So help me God.
CREED OF PROFESSIONALISM
I revere the law, the judicial system, and the legal profession and will at all
times in my professional and private lives uphold the dignity and
esteem of each.
I will further my profession’s devotion to public service and to the public
good.
I will strictly adhere to the spirit as well as the letter of my profession’s code
of ethics, to the extent that the law permits and will at all times be
guided by a fundamental sense of honor, integrity, and fair play.
I will not knowingly misstate, distort, or improperly exaggerate any fact or
opinion and will not improperly permit my silence or inaction to mislead
anyone.
I will conduct myself to assure the just, speedy and inexpensive
determination of every action and resolution of every controversy.
I will abstain from all rude, disruptive, disrespectful, and abusive behavior
and will at all times act with dignity, decency, and courtesy.
I will respect the time and commitments of others.
I will be diligent and punctual in communicating with others and in fulfilling
commitments.
I will exercise independent judgment and will not be governed by a client’s
ill will or deceit.
My word is my bond.
Rules of Professional Conduct
Preamble: A Lawyer’s Responsibilities
Lawyers are officers of the court and they are
responsible to the judiciary for the propriety of their
professional activities.
Within this context, the legal profession has been
granted powers of self-government. Self-regulation
helps maintain the legal profession’s independence from
undue government domination.
Thus, every lawyer is responsible for observance of the
Rules of Professional Conduct. A lawyer should also aid
in securing their observance by other lawyers.
Neglect of these responsibilities compromises the
independence of the profession and the public interest it
serves.
Code of Judicial Conduct
Canon 3. A Judge Shall Perform the Duties of
Judicial Office Impartially and Diligently
3(B)(4) A judge shall be patient, dignified, and
courteous to litigants, jurors, witnesses, lawyers,
and others whom the judge deals in an official
capacity, and shall require similar conduct of
lawyers . . . and others subject to the judge’s
direction and control.
DEPOSITION ABUSE
Fitzgerald A. Frater
Angela M. Miller
David L. Dawson
DEPOSITION ABUSES
GOING TOO FAR
Hostile, uncivil and vulgar conduct
– Henry John Martocci demeaned opposing party and her counsel, Diana
Figueroa, belittling and humiliating her, with comments that she did not know the
law or the rules of procedure, that she needed to go back to law school, that she
was a "stupid idiot“ and a "bush leaguer“, that depositions were not conducted
according to "girl's rules“, and that her client was a "nut case."
– Mr. Martocci also made demeaning facial gestures and stuck out his tongue at
the opposing party and Ms. Figueroa
– Martocci received a reprimand and probation. Florida Bar v. Martocci, 791 So. 2d
1074-76 (Fla. 2001).
Impeding, delaying and frustrating fair examination
Failure to answer and intentionally evasive answers
I will abstain from all rude, disruptive, disrespectful, and
abusive behavior and will at all times act with dignity,
decency, and courtesy.
FEDERAL RULES OF CIVIL
PROCEDURE
Fed.R.Civ.P. Rule 30
– 2000 Amendment
– Rule 30(d)(3)
If the court finds that any impediment, delay, or other conduct
has frustrated the fair examination of the deponent, it MAY
impose upon the persons responsible an appropriate
sanction, including the reasonable costs and attorney’s fees
incurred by any parties as a result thereof.
“Paragraph (3) …authorizes the court to impose an
appropriate sanction on any person responsible for an
impediment that frustrated the fair examination of the
deponent. This could include the deponent, any party, or
ANY OTHER PERSON involved in the deposition.”
FEDERAL RULES OF CIVIL
PROCEDURE
Fed.R.Civ.P. Rule 30
– Rule 30(d)(4)
At any time during a deposition, on motion of a party or of the
deponent and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably
to annoy, embarrass, or oppress the deponent or party, the
court…may order the officer conducting the examination to
cease forthwith from taking the deposition, or may limit the
scope and manner of the taking of the deposition as provided
in Rule 26(c). If the order made terminates the examination,
it may be resumed thereafter only upon the order of the court
in which the action is pending. Upon demand of the
objecting party or deponent, the taking of the deposition must
be suspended for the time necessary to make a motion for an
order. The provisions of Rule 37(a)(4) apply to the award of
expenses incurred in relation to the motion.
LOCAL RULES REGARDING
DEPOSITION ABUSES
Middle District of Florida- None
Northern District of Florida- None
Southern District of Florida- Rule 30
– “The purpose of this rule is to curb unprofessional
conduct at depositions.”
– Sanctions for Abusive Deposition Conduct
The court, if it anticipates deposition abuse, may order that
any deposition be taken at the courthouse or special master’s
office so that, at the request of any party, witness, or counsel,
any dispute may be heard and decided immediately by the
court or special master. Rule 30.1C
Florida Rules of Civil Procedure
Rule 1.310(c) “…Any objection during a deposition shall
be stated concisely and in a nonargumentative and nonsuggestive manner…”
Rule 1.310(d) “At any time during the taking of the
deposition, on motion of a party or of the deponent and
upon a showing that the examination is being conducted
in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or
party…the court…may order the officer conducting the
examination to cease forthwith…or may limit the scope
and manner of the taking of the deposition…” (emphasis
added)
Florida Rules of Professional
Conduct
None regarding deposition abuses
20th Judicial Circuit Rules
Adopted Standards of Professional
Courtesy and Conduct on May 8, 2000
Established Peer Review Program
Designed to supplement and not supplant
the Standards of Courtroom Decorum set
forth in Administrative Order 2.13
DEPOSITION ABUSES
NOT GOING FAR ENOUGH
I WILL EXERCISE INDEPENDENT
JUDGMENT AND WILL NOT BE
GOVERNED BY A CLIENT’S ILL WILL
OR DECEIT.
I WILL NOT KNOWINGLY MISSATE,
DISTORT, OR IMPROPERLY
EXAGGERATE ANY FACT OR
OPINION AND WILL NOT
IMPROPERLY PERMIT MY SILENCE
OR INACTION TO MISLEAD ANYONE.
SUBSTANCE ABUSE
Patrick G. White
SUBSTANCE ABUSE
I revere the law, the judicial system, and the legal profession and will at
all times in my professional and private lives uphold the dignity and
esteem of each.
I will maintain the respect due to courts of justice and judicial officers.
I will respect the time and commitments of others.
I will be diligent and punctual in communicating with others and in
fulfilling commitments
Las Vegas Lawyer-mistrial by
denial (and proof) of intoxication
The Morning Lawyer*
* “The Morning Lawyer” materials were used with
permission of The Florida Bar, and may be
obtained for future presentations from same.
**Rules cited therein are the Rules Regulating the
Florida Bar, Rules of Professional Conduct.
Referrals to Florida Lawyers’ Assistance,
Inc., are also appropriate for cases of
suspected abuse.
See, Turn to F.L.A. for help -View From The
Bench, by Judge Christine Greider, Adverse
Witness, April 2008, page six (“substance
abuse, compulsive behavior and psychological
problems are treatable illnesses rather than
moral issues”). www.fla-lap.org 800-282-8981
Next three slides provided courtesy of the
Florida Bar present the article: “War on
Addiction,”, also found at:
www.newsweek.com/id/80461
War on Addiction
War on addiction (cont’d.)
War on addiction (cont’d.)
METADATA AND ITS
INADVERTENT DISCLOSURE
Maria I. Barbosa
METADATA: THE FUTURE IMPACT OF INVISIBLE DATA ON
E-DISCOVERY IN FLORIDA
by Nicole O’Neal
December, 2007
Volume 81, No. 11
Metadata: A Brief Definition
– The official definition of metadata is “information
about a particular data set which describes how,
when, and by whom it was collected, created,
accessed, modified and how it is formatted.”
– Metadata can routinely reveal the original authors of
the document, the firm name, the computer name of
the drafting computer, the file location on the drafting
computer, document revisions and versions, file
properties, hidden text, hyperlinks, initials of the
drafter, network or server name of the firm, undo/redo
history, comments on the document, and tracked
changes.
Ethics Opinion 06-2
The Florida Bar implemented Ethics Opinion 06-2 on September 15, 2006 in response to
the number of questions regarding metadata. The opinion outlines the ethical duties
of lawyers when they send and receive electronic documents from other lawyers in
the course of representing their clients. The opinion states:
(1) It is the sending lawyer’s obligation to take reasonable steps to safeguard the
confidentiality of all communications sent by electronic means to other lawyers and
third parties and to protect from other lawyers and third parties all confidential
information, including information contained in metadata, that may be included in
such electronic communications.
(2) It is the recipient lawyer’s concomitant obligation, upon receiving an electronic
communication or document from another lawyer, not to try to obtain from metadata
information relating to the representation of the sender’s client that the recipient
knows or should know is not intended for the recipient. Any such metadata is to be
considered by the receiving lawyer as confidential information which the sending
lawyer did not intend to transmit. See, Ethics Opinion 93-3 and Rule 4-4.4(b), Florida
Rules of Professional Conduct, effective May 22, 2006.
(3) If the recipient lawyer inadvertently obtains information from metadata that the
recipient knows or should know was not intended for the recipient, the lawyer must
“promptly notify the sender.”
Ethics Opinion 06-2
The opinion further notes that lawyers may
need to pursue continuous “training and
education in the use of technology in
transmitting and receiving electronic
documents in order to protect client
information under Rule 4-1.6(a).”
Metadata is an inherent part of every
electronic document. Therefore, to send
the electronic document requires sending
the metadata embedded within it.
Rule 4-1.6(a) and subsection (1)
Pursuant to Rule 4-1.6(a) and subsection (1) of the opinion, the
lawyer can take reasonable precautions to protect the client by
employing features and programs that will remove most of the
metadata in an electronic document. Also, when informing clients of
the risks inherent in transmitting electronic documents, the lawyer
can address concerns pertinent to metadata before obtaining client
consent. However, both of these “special measures” may not be
necessary if subsection (2) of the opinion affords a reasonable
expectation of privacy to electronic documents that shields metadata
from the risks associated with inadvertent disclosure. Since
receiving lawyers cannot mine electronic documents for protected
information in the metadata, sending lawyers may not be required to
take measures to conceal or remove it.
Rule 4-4.4(b)
Rule 4-4.4(b) only applies to “documents” and may not be applicable
to inherent parts of the document (i.e., metadata). If Rule 4-4.4(b) is
applicable, it could not be efficiently implemented. Of the lawyers
aware of the existence of metadata, few will spend the time and
resources necessary to warn sending attorneys that the metadata in
the electronic document they received may reveal protected
information. Again, the author recognizes the utility of Ethics Opinion
06-2. If receiving lawyers are prohibited from mining the document’s
metadata in the first place, then they will not encounter protected
information in the metadata and issues relevant to Rule 4-4.4(b)
should not arise. If they encounter this information, they have an
obligation under subsection (3) of the opinion to promptly notify the
sender.
Duty to Comply
vs.
Violation of Ethics
Uncertainty will arise when lawyers are
faced with a duty to comply with these
rules at the risk of violating their ethical
obligations to safeguard protected and
confidential information. Therefore, Florida
lawyers must be cognizant of metadata’s
existence in order to understand the
impact it has on the discovery process and
on their client’s rights.
SANCTIONS
Chuck Zundel
72 Reported Cases of Disciplinary Actions
from January 2008 to April 1, 2008
The Florida Bar News
Drug Crimes and NonMonetary Criminal
Transgressions
14%
Matters of Money and
Trust Accounts
54%
Competently
Representing and
Communicating with
Client; Candor with the
Court
32%
Examples of Transgressions
Drug Crimes and Non-Monetary Criminal Transgressions
– DUI and drug possession
– Child pornography and child abuse
Matters of Money and Trust Accounts
– A bright-line distinction as to consequences between violations bearing upon
failure to maintain adequate trust account records and misappropriation of funds
for personal use and gain
– Misappropriation of large sums of money
– Mail fraud and income tax evasion
– Fabricating claims and submitting fraudulent invoices for legal work
Competently Representing and Communicating with Client; Candor with the
Court
–
–
–
–
–
–
Abandoning practice and failure to notify or protect clients
Accepting cases and practicing while suspended
Violating Court order prohibiting involvement by helping draft a pro se brief
Failure to respond to discovery after repeated directives
Taking fees; no significant activity
Misrepresenting assets and relationship in personal bankruptcy
SANCTIONS
Lawyer/client sanctioned $29,000 for
client’s “profanity-laced” deposition
Lawyer, Client Sanctioned $29K for
Client’s Profanity-Laced Deposition, ABA
Journal Law News Now, March 5, 2008,
discussing GMAC Bank v. HTFC Corp.
PUBLIC PERCEPTION OF
ATTORNEYS
Jessica I. Horowitz
Please see The Florida Bar website
www.flabar.org and access Ethics
Opinion/Advertising Regulation and
Information/Examples of Complying and
Non Complying ads
“Life’s Short. Get a Divorce.”
Billboard
Public Perception of Attorneys
Advertising
– An attorney may not solicit prospective
clients through Internet chat rooms,
defined as real time communications
between computer users. OPINION A00-1 (August 15, 2000)
January 1, 2008: Bar News Article
Action preventing online lawyers from
answering questions nixed.
– Review committee on Professional Ethics to
review chat room advertising issue
Opinion on lawyers on chat rooms to be
reconsidered
CONCLUSION
" While serving as advocates for their
clients, lawyers are not required to
abandon notions of civility. Quite the
contrary. . . [C]ivility is an essential part of
effective advocacy. Professionalism's main
building block is civility and it sets the truly
accomplished lawyer apart from the
ordinary lawyer." Chief Justice Robert
Benham of Georgia Supreme Court, Butts
v. State, 546 S. E. 2d 472, 486 (Ga. 2001).
CITES
Florida Rules of Civil Procedure.pdf
Florida Rules of Professional Conduct.pdf
Local Rules for the Southern District.pdf
Standards of Professional Courtesy in the 20th Judicial
Circuit.pdf
The Florida Bar v Martocci.pdf
Lawyer, Client Sanctioned $29K for Client’s ProfanityLaced Deposition | ABA Journal - Law News Now
GMAC Bank v HTFC Corp.pdf
Metadata The Future Impact of Invisible Data on E
Discovery in Florida.pdf
Brought to you by the following:
Judge Vince Murphy
Judge Daniel Monaco
Bradley S. Donnelly—Treiser, Collins & Vernon
Maria I. Barbosa—Cohen & Grigsby
David L. Dawson—Bond, Schoeneck and King
Fitzgerald A. Frater— Frater Law Firm, P.A.
Jessica I. Horowitz- Legal Research Consultants
Angela M. Miller—The Livingston Firm
Patrick G. White– Porter Wright Morris & Arthur
Chuck Zundel—Bond, Schoeneck and King