December 17, 2006
Green and Zacharias on The "May" Rules of Ethical Conduct: Discretion With Constraints?
Posted by Alan Childress
Bruce Green (Fordham, bottom left) and Fred Zacharias (U. San Diego, right) have posted on SSRN their article, "Permissive Rules of Professional Conduct." It will be published in Minnesota Law Review's volume 91. Here is the abstract:
This Article examines permissive rules of professional conduct--that is, rules providing that lawyers “may” engage in particular conduct--and the implications of these rules for other law governing lawyers. One might assume that, when a professional code explicitly authorizes lawyers to engage in certain behavior, the drafters made a normative judgment that the best way to regulate the conduct covered by the rule is to let lawyers determine how to act as a matter of individual discretion. One might also take the view that this normative judgment is worthy of respect and that other lawmakers should not encroach on the discretion accorded by the rules.
This Article calls that view into question. It demonstrates that permissive aspects of the professional codes may be more limited than readily apparent and that, even when the code drafters intend to relegate issues to lawyers' discretion, their justifications for according discretion often leave room for external constraints.
December 17, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
"On Futher Review": Need More Serious Reaction To Too-Clever Lawyering
I asked my mom what "review" means, and she said "look over." Works for me. A Minnesota lawyer did not turn over requested documents "reviewed" by three of his expert witnesses because the documents had only been looked at once, not twice -- as in re-viewed! Interesting post here on WSJ law blog about the hearing in which the other side demanded the documents finally be turned over, arguing it's a "palpably ridiculous definition of the word ‘review.’ " And the Iowa state court judge ordered the documents produced. No word in the underlying Des Moines Register story -- which reports further tales of the other side's own overly-cute use of language too -- as to whether sanctions will be imposed for resisting the discovery request for months by this reading of the word "review." One possibility is barring the experts from testifying.
Many of the [numerous and vocal] WSJ commenters have taken this story not so much as about the lawyering as about the judging -- ordering the documents to be, finally, produced is not enough. This kind of lawyering will continue if there's no price tag to it. That is how I see the real story too (though unlike the commenters I do not assume that the court is not sanctioning the offending attorney -- there may be sanctions the press has not reported on, or some in the future once the immediacy of trial is done). There's an anonymous one [well, named Judges Must Do Their Jobs, but I bet he or she has a nickname or is just JMDTJ to friends] who limericks, in language I can't show my mom:
Any judge who shows no spine,
Invites the misconduct of swine,
Who re-define words,
Serve the judge endless turds,
And walk away just fine!
All over the country, in state and federal courts, judges can and do complain about the sharp lawyering in their courts. But sometimes it is their job to stop it, punish it, deter it, end it. Here, it would not be enough to patiently re-order something that was ordered before. It did not need an order in the first place to compel compliance with a properly-made discovery request. This was not a reasonable reason to deny the documents, and it should not be treated as ho-hum lawyering.
One commenter's observation that the requesting attorney could have used the term "examined" instead of "reviewed" is true but misses the point. Lawyers should not have to write redundancies and legalese into their discovery requests just to anticipate fallacious contortions of English by the opponent. The by-product of treating this kind of sharp practice as typical lawyering is not only bad writing on future discovery requests -- more sounding like a "lawyer" -- but public perceptions that this is what lawyers do and how lawyers are. The judge's job is not just to resolve disputes but also to be the first line of defense for our profession's public reputation.
I may not know much, but -- like my mom -- I do know the meaning of the word "review."