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Ethics: A View From the Bench

By Judge Michael C. Flanagan

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The practice of law is a tough business, and the trial process can be contentious and difficult. Nevertheless, our legal system is the best in the world. A good trial, handled fairly and with healthy advocacy, usually results in a rough form of justice. As difficult as the process may be participants should not have to suffer discourteous, impolite, impudent, uncivil or impertinent behavior from each other.

The roles of lawyers and judges are especially important in this process because they assume a solemn duty to protect legal rights and work for justice under law. Their behavior indicates how seriously they take this role.

We all know lawyers who are difficult, hard to get along with, short-tempered, impatient or contentious. Some lawyers will tell you they charge more when a particular lawyer is on the other side and with good reason. How many times has a lawyer warned clients about a particular judge? Recently, the conduct of a judge was the focus of nationwide attention for intemperate behavior, ignoring due process and fundamental rights of individuals and disregarding applicable laws, particularly contempt law.

A lawyer once told me there is a fine line between advocacy and rudeness. While most lawyers and judges are respectful, reasonable, hard-working, prepared and conscientious, some cannot control their emotions and use difficult behavior as a method of practice. Most would agree that effective representation does not require, and is in fact impaired by, conduct which can be characterized as uncivil, rude, abrasive, abusive, vulgar, antagonistic or obnoxious, and that rude behavior hinders effective advocacy.

Lawyers should be reminded that the Preamble of the Rules of Professional Conduct states: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. A lawyer’s professional responsibilities are contained in the Rules of Professional Conduct but they are also guided by personal conscience and the approbation of professional peers.”1

The Preamble of the Code of Judicial Conduct states: “Judges should maintain the dignity of judicial office at all times and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.”2

Professionalism is not just a behavior to be practiced for advantage or appearance. Rather, it should be practiced in a way to create an atmosphere conducive to effective advocacy, fair decision-making and achieving just results. It should also promote public respect for the legal profession. U.S. Supreme Court Justice Louis Brandeis once said, “If we desire respect for the law, we must first make the law respectable.”3 The same applied to our behavior.

For lawyers:

  • Refrain from engaging in conduct which exhibits or is intended to appeal to bias against a person based on their race, color, national origin, ethnicity, religion, gender, sexual orientation or disability;
  • Do not, even if requested by a client, indulge in offensive conduct directed to opposing counsel, parties or witnesses;
  • Refrain from disparaging personal remarks and acrimony toward opposing counsel, parties or witnesses;
  • Treat opposing counsel, parties, and witnesses with respect, civility and fairness;
  • Your word is your bond – keep it;
  • Do not knowingly misstate, distort or exaggerate any fact or legal argument;
  • Do not mislead anyone – opposing counsel or the court – and immediately disclose or correct mistakes or misstatements;
  • Present your case based on the facts and law, accurately, concisely and fairly, without unfairly attacking opposing counsel or party;
  • Make every reasonable effort to conduct discovery by agreement and with promptness;
  • To the extent that your client’s interest will not be adversely affected, do not be unreasonable concerning requests for extension of deadlines, scheduling changes and hearings, and make reasonable accommodations; and
  • Stipulate to undisputed facts.

For judges:

  • Be courteous, respectful and civil to all lawyers, parties and witnesses;
  • Maintain control of the proceedings and immediately correct any incivility between lawyers. Use contempt proceedings sparingly and only when absolutely necessary. Above all, follow the law;
  • Do not employ hostile, demeaning or humiliating words in opinions or in communications with lawyers, parties or witnesses;
  • Be punctual in convening all hearings. If delay is necessary, notify all lawyers;
  • Be flexible. When scheduled hearings conflict with the schedules of attorneys, parties or witnesses, if possible, make accommodations;
  • Make a reasonable effort to decide all matters presented for decision in a prompt manner;
  • Be deliberate, impartial and studious when considering the issues. Where necessary, write orders with detailed findings of fact and conclusions of law;
  • Avoid unnecessary delays but be considerate of time constraints, pressures and exigencies of lawyers and their practices;
  • Allow sufficient time for presentation of facts and legal argument. If a case cannot be settled, put on the robe, go in the courtroom and try the case. Respect each party’s right to be heard;
  • Do not impugn the integrity or professionalism of any lawyer because of the client or legal cause he represents; and
  • Avoid delays or procedures which needlessly increase the cost of litigation.

Justice John F. Reif of the Oklahoma Supreme Court stated, “The fact that our system of justice is referred to as the adversary system does not mean that the process and people involved must be antagonistic and combative. Indeed, our system is adversarial only in the sense of allocating burdens regarding issues, proof, and persuasion, and in allowing an opportunity for each party to contest and controvert whether their opponent met their assigned burdens. Otherwise, our system of justice is marked by the reasoned, peaceful resolution of disputes.”4

Obviously, lawyers seek to win their cases – that’s why they are hired. Wins enhance a lawyer’s reputation, which in turn means more, and better, cases and more, and better, fees. Judges seek to make good decisions which are respected by the lawyers and the public and which are affirmed if appealed. Even more important than the skill and reputation of lawyers and judges is the way we conduct our business. Society values a legal system whose main goal is achieving just and fair results. I submit we can do that with the highest professionalism.

ABOUT THE AUTHOR

Michael C. Flanagan has been the associate district judge of the Cotton County District Court since January 2007. Before taking the bench, he practiced law in Cotton County for 26 years. Judge Flanagan has served on the Oklahoma Supreme Court’s Juvenile Justice Oversight and Advisory Committee since 2011, having been appointed by Chief Justice Steven W. Taylor and reappointed by Chief Justice Douglas Combs.

1. Okla. Stat. Tit., Title 5, Ch. 1, App. 3-A, Preamble: A Lawyer’s Responsibilities.
2. Okla. Stat. Tit. 5, Ch. 1, App. 4, Preamble.
3. Louis Brandeis, in the Cleveland Plain Dealer (15 October 1912) as cited in A Treasury of Jewish Quotations, ed. Joseph L. Baron, Rowman & Littlefield (1996), p. 269.
4. The Standards of Professionalism: Preserving the Longstanding Tradition of Civility, by Justice John F. Reif, Oklahoma Supreme Court, Sovereignty Symposium XXX 2017 - Restoration, II.

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 10 (December 2018)