Clifford’s Notes: Zealous advocacy and civility

By Robert A. Clifford
Clifford Law Offices

The perception of lawyers certainly is impacted by attorneys’ conduct in a public courtroom. It seems, however, that it is more often behind closed doors, such as in depositions, that the conduct of lawyers can be called into question.

Take the recent case of Reed v. Advocate Health Care, No. 06 C 3337 (N.D. Ill., decided Jan. 17, 2008). The defense lawyer was charged with having ”improperly coached” two employees of the company ”during the course of the deposition when he became afraid that they would not follow their rehearsed scripts.” Plaintiff’s counsel also complained that opposing counsel supplied the witness with a copy of a law review article ”containing a road map for the defense to win this very case.”

In his decision, U.S. District Judge John F. Grady admonished both sides, stating that they must comply with the requirement of Rule 37.2 to ”meet and confer” before filing discovery motions. His decision then took an interesting turn.

He found that the charges of incivility and lack of cooperation applied more to the lawyer who brought the motion for sanctions. After quoting at length from the transcript of the plaintiff’s lawyer’s ”inartful questions,” the judge found that it was plaintiff’s counsel who engaged in ”overheated rhetoric and unfounded allegations.” Judge Grady’s decision demonstrates that such conduct would not be tolerated.

”[The lawyer’s] conduct persuades us that he either has no concept of the appropriate role of an attorney [footnote omitted] or that he is unable to conform his behavior to the standards of the profession.”

He ruled that the plaintiff’s attorney could reopen the depositions of two defense witnesses for an additional hour for the limited purpose of cross-examining them on the documents they used to refresh their recollections, but a different attorney from the same firm would participate in the depositions.

It is a shame when uncooperative behavior between opposing counsel escalates outside of court to the point where it must be brought before the court to take up its time and resources. The civility of lawyers has always been a concern of mine, not only having witnessed some intolerable behavior by trial bar colleagues but also in the declining public perception of lawyers.

Recently, my firm sponsored a continuing legal education seminar free of charge for hundreds of lawyers on ”The Ethics of Trial Work,” during which Northwestern University School of Law Professor Robert Burns presented the Rules of Professional Conduct through hypotheticals. He explained what is acceptable behavior and what is not, including a discussion of Illinois Rule of Professional Conduct 8.4(a)(5), which provides that no lawyer shall ”engage in conduct that is prejudicial to the administration of justice.”

In particular, Illinois Supreme Court Rule 219 addresses the consequences of refusing or failing to comply with discovery rules or orders, and allows the court to impose a number of sanctions, including that ”information obtained through abuse of discovery procedures be suppressed.” In making a distinction between misconduct during trial rather than during the discovery phase, a recent Illinois case found that Rule 219 is not a basis for sanctioning conduct that occurs at trial.

In Gonzalez v. Nissan North America, Inc., 369 Ill.App.3d 460, 860 N.E.2d 386 (1st Dist. 2006), the court dismissed the complaint as a sanction for plaintiff’s counsel’s attempt to refresh an expert’s recollection with documents that had been barred at trial because they had not been timely disclosed during discovery. The trial judge found the attorney’s use of stricken pages was a ”purposeful, wil[l]ful, and wanton violation of the court’s previous order.” Id., at 393.

On appeal, the court ruled that the sanction was too harsh and reversed and remanded the case for further proceedings to be conducted with a different judge and with suggestions for a lesser sanction. Despite a trial court’s being vested with wide discretionary powers regarding pretrial discovery, the court on appeal found that ”the sanctions imposed must be just and proportionate to the offense.” Id., at 390.

In reversing and remanding the dismissal of the case with prejudice, which should be a sanction ”of last resort,” the court embraced ”Illinois’ public policy of resolving complaints on their merits.” Id. The court examined the purpose of sanctions for failing to comply with discovery rules under the Illinois Supreme Court Rules, and that is ”to promote the flow of discovery and not to punish a dilatory or non-complying party.” Id., at 464 [citation omitted].

The court found that ”the underlying spirit of the system of civil justice is that controversies should be determined according to the substantive rights of the parties.” Id., at 471 [citation omitted].

As discovery becomes more sophisticated, particularly regarding electronic materials, courts will be taking a closer look at how lawyers respond to discovery requests to fulfill the letter as well as the spirit of the law.

I was glad to see that the Illinois Supreme Court mandated course work on ethics and professionalism each year. I think lawyers could use a refresher course to be reminded that even zealous advocacy doesn’t mean they can forget the rules.