June 2012 | Earn one hour of MCLE Credit in Legal Ethics
Ethics and Civility – The Importance of Professionalism and Respect
You file a meritorious motion to continue the jury trial for a month. Despite your documented best efforts, you have been unable to procure the information you need to be ready to try the case. Although she acknowledges your showing of due diligence with respect to the information sought, your opposing counsel objects to your request for a continuance. Despite the fact that neither she nor her client will be inconvenienced or prejudiced in any way by the delay, she tells you that she is objecting simply “because she can.” You wonder whether or not her conduct in exercising her right to object without reason violates any applicable ethics rules. At the very least, you recognize her conduct as blatantly uncivil. But is there any remedy?
This article will discuss some of the law and ethical rules that may apply to behavior from opposing counsel that is uncivil and unprofessional. It will discuss the California Rules of Professional Conduct, the California Business and Professions Code, and relevant case law.
Deceiving Opposing Counsel
Case law addresses the issue of whether an attorney is permitted to deceive his or her opposing counsel. In Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, the court held that an attorney, negotiating at arm’s length with an adversary in a merger transaction, was not immune from liability to opposing party for fraud for not disclosing “toxic stock” provision. “A fraud claim against a lawyer is no different from a fraud claim against anyone else.” (Id. at 291.) “Accordingly, a lawyer communicating on behalf of a client with a nonclient may not knowingly make a false statement of material fact to the nonclient.” (Ibid., citation omitted.) The court stated that while a “casual expression of belief” that the form of financing was “standard” and was not actionable, active concealment of material facts, such as the existence of a “toxic stock” provision, is actionable fraud. (Id. at 291-294.)
Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 203 held an attorney liable to opposing counsel for making a false statement to induce the closure of a transaction. In Monroe v. State Bar of Cal. (1961) 55 Cal.2d 145, 152, the court stated that “Intentionally deceiving opposing counsel is ground for disciplinary action.” In Coviello v. State Bar of Cal. (1955) 45 Cal.2d 57, 65, the court held that the State Bar may impose discipline on an attorney for intentionally deceiving opposing counsel. “It is not necessary that actual harm result to merit disciplinary action where actual deception is intended and shown.”
Some lawyers are genuinely unaware of the existence of ethical duties that implicate their conduct toward opposing counsel. To this end, lawyers should be familiar with California Rule of Professional Conduct 3-110, Failing to Act Competently, which states that a lawyer “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” “Competence” is described in subsection (B) as “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” Misconduct when handling a case may result in circumstances that result in an allegation of incompetent representation. An attorney may be subject to State Bar discipline for violating the California Rules of Professional Conduct. (RPC 1-100(A)).
Duty of Candor
In addition to case law, California lawyers are also bound by rules regarding the duty of candor found in the California Business and Professions code as well as the California Rules of Professional Conduct. California Business and Professions Code Section 6106 states that, “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.”
California Business and Professions Code Section 6068 subsection (d) mandates the duty of candor by stating that it is the duty of an attorney to “employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge . . . by an artifice or false statement of fact or law.” Lest these duties be taken lightly, California Business and Professions Code Section 6103 explains that a violation of a lawyer’s duties as an attorney may constitute cause for suspension or disbarment.
While California has a rule regarding candor in the courtroom (California Rule of Professional conduct 5-200), there is no specific rule of professional conduct governing candor to opposing counsel. When the California Rules are silent on a particular issue, we look to the ABA Model Rules for ethical guidance, although ABA Rules and Opinions are not binding authority in California. Regarding ABA formal opinions, case law holds that while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California. 
An attorney’s statements to opposing counsel are covered by the ABA Rule that discusses a lawyer’s duty of candor generally. Model Rule 4.1, Truthfulness in Statements to Others, also covers the duty of candor. Rule 4.1 states that: “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”
Regarding the issue of affirmative misrepresentation versus passive failure to correct misinformation, Rule 4.1 Comment  states that while an attorney must be truthful in his or her dealings with others in representing a client, he or she “generally has no affirmative duty to inform an opposing party of relevant facts.” The Comment goes on, however, to state that “[a] misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”
Comment  clarifies that Rule 4.1 applies to statements of fact. Regarding criminal or fraudulent behavior by the client, Rule 4.1 Comment  reminds lawyers that “[u]nder Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.”
ABA Rule 3.4, Fairness To Opposing Party And Counsel, in pertinent part prevents a lawyer from (a) unlawfully obstructing the access of another party to evidence or from unlawfully destroying, concealing, or altering an item which has potential evidentiary value. It also prevents a lawyer from (b) falsifying evidence, or assisting or counseling a witness to provide false testimony. It also prevents a lawyer from offering a witness any type of inducement that is legally prohibited. Relevant to the client who may be in possession of relevant admissible evidence, the rule also prohibits a lawyer from (f) requesting that a person who is not a client “refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.”
Model Rule 8.4, Misconduct, also includes several provisions relating to a lawyer’s duty of candor. Relevant provisions state that 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, or (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
The ABA also includes a remedy for the misconduct of other lawyers. Rule 8.3, Reporting Professional Misconduct mandates lawyers to report professional misconduct of both judges and other lawyers. The Rule in paragraph (a) provides that a lawyer “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”
Interference with the Administration of Justice
Even the most zealous of attorneys is an officer of the court and has “a paramount obligation to the due and orderly administration of justice.” (Chula v. Superior Court In and For Orange County (1952) 109 Cal.App.2d 24, 39. If opposing counsel’s unprofessional behavior occurs in the courtroom, he or she may be subject to sanctions by the judge.
California Code of Civil Procedure 128 states in pertinent part “that (a) Every court shall have the power to do all of the following: (1) To preserve and enforce order in its immediate presence; (2) To enforce order in the proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority; (3) To provide for the orderly conduct of proceedings before it, or its officers; (4) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein; (5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.
In-court uncivil behavior may rise to the level of conduct actionable by a court’s power of contempt if it is severe enough. California Code of Civil Procedure 1209 lists among the acts or omissions that constitute contempt: “Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding” and “A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding.”
Another relevant section is Penal Code Section 166, which describes criminal liability for contempt of court. Several relevant sections describe actions which constitute contempt of court violations that are punishable as misdemeanors. These include: “(1) Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in the immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority; (2) Behavior as specified in paragraph (1) committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law; (3) Any breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of any court.”
In summary, while lawyers can and should vigorously represent their clients, they may face ethical sanctions if they do so at the expense of misleading opposing counsel or behaving imprudently in court. Knowledge of the applicable ethical and legal rules governing the proper relationships between lawyers will permit the savvy lawyer to represent their client effectively, as well as ethically.
* Disclaimer: the information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.
ABOUT THE AUTHOR:
Wendy L. Patrick is Chair of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) and immediate past Chair of the San Diego County Bar Association Ethics Committee. She has had her own ethics column in the San Diego Daily Transcript for over a decade and writes and lectures on ethics nationally and internationally. Ms. Patrick is also a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division named by her peers as one of the Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer.
Ms. Patrick can be reached at firstname.lastname@example.org or at (619) 531-3260
 State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656.