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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.

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Presentation on theme: "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."— Presentation transcript:

1 From Rule 201(k) to the ARDC 1

2 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

3 Rule 8.3: Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of Rule 8.4(b) or 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

4 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

5 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

6 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, (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). 6

7 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 7 th Circuit Standards for Professional Conduct 7

8 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

9 Discovery Disputes and their Ethical Implications 9

10 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 Preambles of Professional Rules – 10

11 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. Preamble: 7 th Circuit Standards for Professional Conduct 11

12 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

13 1. 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 2. We will not use any form of discovery or discovery scheduling as a means of harassment. 3. 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 4. We will not engage in conduct during a deposition that would not be appropriate in the presence of a judge. 5. 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. 6. During depositions we will ask only those questions we reasonably believe are necessary for the prosecution or defense of an action. Seventh Circuit – Lawyers’ Duties to Other Counsel 13

14 1. 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.” a. Judge Baker ordered a second deposition. C astillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594 (C.D. Ill. 1992) 14

15 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. C astillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594 (C.D. Ill. 1992) 15

16 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. C astillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp

17 5. Three Judge panel suspended counsel from practice in the Central District for one year a. Stated that counsel was “presently unfit to continue to practice before this court.” (pg. 599) b. “Counsel’s conduct is also the most egregious example of lawyer incivility that this Court has ever seen.” (pg. 600) c. Court finds violation of Federal Rule of Civil Procedure 30. d. Court finds violation of Illinois Rules of Professional Conduct. C astillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594 (C.D. Ill. 1992) 17

18 i. 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. C astillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp

19 Redwood v. Dobson, 476 F. 3d 462 (7 th Cir. 2007) 1. “This is a grudge match.” 2. Players: a. Harvey Welch – Attorney, Represented Erik Redwood in criminal prosecution for battery b. Marvin Gerstein – Attorney, represented Welch in the state law civil claims c. 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 d. Charles Danner – Attorney, represented Redwood in Sec case. e. Roger Webber – Attorney, defended Gerstein in the Sec action brought by Redwood f. Richard Klaus – Attorney, defended ASA Dobson in Sec action. 19

20 3. Setting: Attorney Danner takes the deposition of Attorney Gerstein. 4. The testimony: a. 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. Redwood v. Dobson, 476 F. 3d 462 (7 th Cir. 2007) 20

21 b. Other testimony: “first 30 pages or so of the transcript exploring Gerstein’s criminal record—mostly vehicular violations.” c. Other testimony: “Gerstein’s troubles with the state bar.” a censure and 2002 suspension d. Other testimony: “whether Gerstein had been ordered to obtain psychiatric counseling or anger management therapy.” e. “Plaintiffs say that Gerstein once gave Danner ‘the finger.’” f. Court calls the transcript “unedifying to the end.” Redwood v. Dobson, 476 F. 3d 462 (7 th Cir. 2007) 21

22 5. 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). 6. “Mutual enmity does not excuse the breakdown of decorum… [i]t is precisely when animosity runs high that playing by the rules is vital.” Redwood v. Dobson, 476 F. 3d 462 (7 th Cir. 2007) 22

23 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.” Redwood v. Dobson, 476 F. 3d 462 (7 th Cir. 2007) 23

24 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 , 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.” Rule 4.4(a): Respect for Rights of Third Persons 24


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