Abuses in the Legal Profession Cause Concern
By Bill Conger

As many of you know, I left private practice several years ago to become general counsel for Oklahoma City University and to teach at its School of Law. Many times I have been asked what I miss the least about private practice. Keeping time and the billable hour has to be number one on the list, but the increasing lack of civility and shameful ethical behavior in pretrial practice ranks right up there.

Nothing is more important and central to the litigation process than the search for an ultimate achievement of truth. The search for truth is what lawyers are charged with -— and yet lawyers must balance this with the duty to zealously advance the interests of their clients and protect the confidentiality of client information. Balancing these duties is often not easy and the tension can be palpable. Ultimately lawyers must ensure the proper administration of justice; and as officers of the court, we owe important duties to the judicial system, to our colleagues and to the public. To these constituents we owe duties of truth-seeking, courtesy, candor and cooperation while at all times acting in a manner consistent with our clients’ legal interests.

How well are we fulfilling and balancing these duties today? Regrettably, a significant number of judges and experienced practitioners will tell you the abuses in the litigation process are more widespread than ever and continue to degenerate. Most of us are sick and tired of it. Indeed, courts are reacting and more decisions and sanctions are being issued to stop this corrupt behavior.

The abuse of discovery, especially in depositions, has resulted in some states establishing strict rules governing the conduct of a deposition. South Carolina has adopted Rule 30(j), SCRCP, which sets forth nine rules of conduct during depositions described by the court as “one of the most sweeping and comprehensive rules on depositions conducted in the nation.”

Particularly noteworthy under the South Carolina rule is a prohibition of counsel and witnesses engaging in off-the-record private conferences during depositions or during breaks regarding the substance of testimony at the deposition. Texas has also promulgated court rules similar to South Carolina, although the restriction on private conferences is slightly less severe than in South Carolina.  Frankly, I think it is unfortunate that states have found it necessary to adopt these rules to address appropriate conduct in depositions, and I am glad we have not done so in Oklahoma.

I agree with my friends Jack Dawson and Charlie Alden, both of whom have written in the Oklahoma County Bar Association newspaper, The Briefcase, criticizing the South Carolina rule.  As Charlie said, “The Discovery Code in Oklahoma ... has withstood the test of time and experience.” In addition to federal and state discovery rules, we are also bound by the Model Rules of Professional Conduct. Model Rule 3.4 (adopted verbatim as Rule 3.4 of the Oklahoma Rules of Professional Conduct) is the operative rule relating to fairness to the opposing party and counsel and sets forth the discipline which lawyers should operate in the discovery process.

So much of pretrial proceedings are done outside the scrutiny of the court, which is the way most courts would have it. Judges are not interested in dealing with spats between counsel and, in fact, are mostly annoyed by it.  Doing what is right more often than not, best serves the interest of one’s client and the interest of the judicial process. The rules are not complicated, and our conduct is not governed solely by the Code of Professional Responsibility but also by standards of fundamental decency and courtesy. I think it is well for all of us to remember the principles of the Lawyer’s Creed that was adopted by the OBA Board of Governors on Nov., 17, 1989.

Colleagues, I believe these statements still ring true almost 20 years later.

LAWYER’S CREED

I revere the Law, the System and the Profession, and I pledge that in my private and professional life, and in my dealings with members of the Bar, I will uphold the dignity and respect of each in my behavior toward others.

In all dealings with members of the Bar, I will be guided by a fundamental sense of integrity and fair play.

I will not abuse the System or the Profession by pursuing or opposing discovery through arbitrariness or for the purpose of harassment  or undue delay.

I will not seek accommodation for the rescheduling of any Court setting or discovery unless a legitimate need exists. I will not misrepresent conflicts, nor will I ask for accommodation for the purpose of tactical advantage or undue delay.

In my dealings with the Court and with counsel, as well as others, my word is my bond.

I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

I recognize that my conduct is not governed solely by the Code of Professional Responsibility, but also by standards of fundamental decency and courtesy. Accordingly, I will endeavor to conduct myself in a manner consistent with the Standards of Professionalism adopted by the Board of Governors.

I will strive to be punctual in communications with others and in honoring scheduled appearances, and I recognize that neglect and tardiness are demeaning to me and to the Profession.

If a member of the Bar makes a just request for cooperation, or seeks scheduling accommodation, I will not arbitrarily or unreasonably withhold consent.

I recognize that a desire to prevail must be tempered with civility. Rude behavior hinders effective advocacy, and, as a member of the Bar, I pledge to adhere to a high standard of conduct which clients, attorneys, the judiciary and the public will admire and respect.

Sincerely,

To contact President Conger, e-mail him at bconger@okcu.edu