25 Rev. Litig. 747

The Future of Litigation Ethics

Fred Hagans

Mr. Hagans elaborates upon the issues that were discussed at The Review of Litigation’s annual symposium, which took place on February 24, 2006. Mr. Hagans begins by discussing the central importance of ethical rules for those who hope to properly practice as a professional. He proceeds to write of his own perspective on the future of litigation ethics by looking at the current state of affairs; specifically the impact of the vanishing jury trial and the emergence of arbitration as an alternative. Mr. Hagans contends that arbitration has failed to become a more efficient and economic means of dispute resolution, and that consumers and taxpayers are being denied fundamental rights by the ubiquity of arbitration clauses—forced to sign away their traditional rights to pursue claims in the civil justice system. Mr. Hagans then offers a list of practical solutions that can be used by all lawyers hoping to better the system in which they practice as well as how to live by the ethical rules that are central to the profession of law. Finally, Mr. Hagans offers practical thoughts on how to be a better professional, how to be not only a litigator but a trial lawyer, and finally, advice on how to better mediate. Mr. Hagans concludes that litigation ethics are alive and well, and that their importance is essential in helping lawyers to understand that it is not only the results that matter, but also the process by which we get there.

 

   I. Introduction On February 24, 2006, The Review of Litigation held a symposium, which included a panel discussion on "The Future of Litigation Ethics." The panel was chaired by Professor Charles Silver. n1 Other panel members included former Supreme Court of Texas Justice Craig Enoch, n2 Federal Judge Xavier Rodriguez, n3     Austin attorney Claude Ducloux, n4 and Houston attorney Fred Hagans. n5    The purpose of the panel discussion was to provoke thought on various issues that generally fall within the overall topic. Some of the issues include:    . Do "localized" ethical rules have a place in litigation in the future, particularly when the practice of law is becoming national or even multi national?    . Do ethical rules that are created with a "traditional" perspective (plaintiff versus defendant) really fit the evolving landscape which includes mass torts, class actions, and arbitrations?    . What are the valid purposes for ethical rules?    . Do lawyers have to "guess" at which ethical rules apply when the ethical rules of multiple jurisdictions might apply?    . In settlement negotiations, when does a "bluff" become a misrepresentation how far can you go?    . Are the ethical rules different for arbitrations and mediations than for judicial proceedings?    . What are the appropriate purposes of ethical rules? We often speak of the vocation of law as the "legal profession." What is a "profession" for purposes of this paper? The term profession has been defined as: "a calling requiring specialized knowledge and often long and intensive academic preparation; b: a principal calling, vocation, or employment; c: the whole body of persons engaged in a calling." n6    The Supreme Court of Texas has also given guidance. In the case of Lopez v. Munoz, Hockema & Reed, L.L.P., n7 Justice Gonzales stated:    In Texas, we hold attorneys to the highest standards of ethical conduct in their dealings with their clients. The duty is highest when the attorney contracts with his or her client or otherwise takes a position adverse to his or her client's interests. As Justice Cardozo observed, "[a fiduciary] is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior." Accordingly, a lawyer must conduct his or her business with inveterate honesty and loyalty, always keeping the client's best interest in mind. n8 Finally, the preamble to the Texas Disciplinary Rules of Professional Conduct also provides a perspective on our profession:    A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. n9 In summary, the legal profession is composed of persons with specialized knowledge, with a particular calling, and with multiple roles of client representative (zealous advocate), officer of the legal system, and public citizen having special responsibility for the quality of justice i.e., guardian of the law.    II. Purposes of Ethical Rules Without trying to create an exclusive list of all legitimate purposes of creating ethical rules for lawyers, certain seem to be apparent:    . One of the legitimate purposes is to create a framework by which lawyers can resolve the conflicting responsibilities among the various roles. It is easy to visualize situations where the role of zealous advocate and the role of officer of the legal system can engender tension for a lawyer. Prohibiting the use of perjury is good for the legal system, but not all clients would agree that refusal to allow a client to get on the stand to tell his story, even if false, is consistent with zealous advocacy. Maintaining client confidences is important to the relationship, even though many will see it as offensive to the role of officer of the court.    . Another legitimate purpose of the ethical rules is to establish rules for the attorney to follow particularly with respect to the client. The role of an attorney as fiduciary is significantly different than the role of merchant to merchant. In a day where the financial rewards of some parts of the practice are very large, the idea of fiduciary can be easily lost. The rules are there to help us keep them in mind.    . An additional purpose of the ethical rules is to remind lawyers of the public responsibility they have. This responsibility is at least two fold: (1) the obligation to seek to improve the law, the administration of justice, and the quality of service rendered by the "profession"; and (2) the obligation to render public interest legal service, particularly by providing legal services for those unable to pay.    . Some believe a proper role of the ethical rules is to restrict or prohibit practices that are viewed as unseemly, demeaning to the profession's image, or repugnant. Historically, there has been a view of advertising as being antithetical to the concept of a profession. The "established bar" has been opposed generally to the concept of marketing and advertising at least as it has been done by certain segments of the bar. Whether appropriate or not, solicitation of corporate clients and solicitation of personal injury clients has often been viewed differently. Some argue that a legitimate purpose of the ethical rules is to promote the image of the profession, although others argue that such is not an appropriate purpose.    III. Thoughts for the Future of Litigation Ethics A Personal Perspective Lawyers have an opportunity to shape and mold the environment in which they practice. We advise our clients on which lawsuits should be filed. We advise our clients on the manner in which litigation should be conducted. We advise our clients when and how lawsuits should be resolved. We advise clients on when and how to invest the effort to attempt to change the law. We advise clients on approaching courts and the legislature for systemic change. We as lawyers can shape the future of our profession. But have we used our efforts to benefit the profession as a whole? If not, why not? Are we willing to let the immediacy of specific cases and the requests (whether proper or professional) of specific clients overshadow our responsibility for creating the type of system in which we want to practice? Have we sometimes stood by silently because of the fear that some of our clients might not approve of actions we want to take? We can collectively take hold of the reins again and shape our profession, but we must decide we want to do so.    A. Current State of Affairs Trial lawyers and the judicial process are not held in respect by the public. This current situation is not completely new. Voices have always been raised about lawyers and the legal system. It does seem, however, that the volume of the clamor and the rancor with which it is currently being delivered are qualitatively different. The sources of disrespect are also varied perhaps more so now than in the past. It does not appear that the judicial branch is viewed as a co equal branch of our government. Certainly, no other branch has been marginalized as much through efforts to privatize as exemplified in the systemic move to arbitration or private judges and juries.    B. Waiver of the Jury Trial Another attack on the judicial system has been the requirement that consumers, and others, are required to waive their rights to a trial by jury. Like the requirement for arbitration, the requirement to waive a trial by jury is often something that is not the result of bargaining between persons of equal power. Often, like the agreement to arbitrate, the agreement to waive a jury trial is something that is not disclosed or even easily spotted within the fine print of a boiler plate consumer agreement.    C. The Impact of the Vanishing Jury Trial There is no dispute that fewer and fewer lawsuits are resolved through jury trials. n10 The causes are debated, as are the effects.    As a practical matter, the loss of the jury trial has particular consequences. One is the loss of institutional memory. One factor in the evaluation of cases is a review of what juries have done in similar or analogous cases.    Trials and their results are public knowledge. Verdicts and judgments are public records. Obtaining results for a particular venue or a particular type of case is feasible. Arbitrations, however, are not generally public matters. Arbitrators, as their name implies, can be somewhat arbitrary. Therefore, one consequence is the loss of the ability to use past results for predictive purposes.    Another loss is the experience and judgment gained by trial lawyers through participation in jury trials. Present and future lawyers are losing a forum in which professional judgment is learned even if it is learned the hard way. Most seasoned trial lawyers have had the pleasure, and the anguish, of jury trials. They have presented evidence, and a jury has told them whether the evidence was believable. The lawyers have gained an understanding and appreciation for the human drama that can unfold in a trial situation. Jury trials instruct a lawyer about the fundamental fairness on which jury decisions are based. Jury trials also create the opportunity for a lawyer's conduct to be scrutinized by a jury. Many lawyers have had a jury tell them whether they approved or disapproved of a lawyer's conduct in their treatment of witnesses, treatment of opposing counsel, respect for the court, and respect for the system. Jury trials can refine a lawyer's judgment, which can prove to be critical for making important decisions on behalf of clients. This judgment, coupled with the specialized training of law school, has been among the most important services we provide any client.    In the absence of the jury trial as a method for developing judgment and rewarding and punishing conduct toward witnesses, opposing counsel, the system, and juror time, lawyers forge ahead without this benefit. To compensate, lawyers are trained through trial exercises in law schools or continuing legal education drills where the body of evidence is clearly defined, surprises are few, and gamesmanship is prized. What emerges is a lawyer who has been taught that gamesmanship is the way to win, and this lesson is taught without the backdrop of a jury's review. Without that backdrop, a lawyer misses out on the importance of learning that a real understanding of the facts not just the facts in a vacuum, but the facts against the back drop of human experience and understanding is important. As a profession, many have learned tricks without the counterbalance of the lessons of fairness and professionalism that juries readily hand out. Is it any wonder that we see a decline in professionalism?    Today's legal disputes are largely decided pretrial through battles over discovery and motion practice. These battles are waged without a jury's oversight and too frequently without judicial intervention. Today, lawyers do things in depositions they would never do in front of a jury. Deponents are treated unprofessionally, which perpetuates the public's distaste for litigation and the lawyers who practice in our judicial system. When courts do intervene in discovery disputes, it is often with a heavy handed grumpiness that signals to both parties and lawyers that courts do not wish to be bothered with discovery disputes. As a result, lawyers ignore and selectively enforce discovery rules and bludgeon witnesses in depositions. Without a mechanism for control, these practices continue unchecked and escalate until settlement. As a result, we have a litigation system filled with staggering excess: protracted document fights that are limited only by clients' willingness to pay for their cost, abusive depositions that are limited only by the courts' willingness to intervene and a lawyer's ability to find a court who will take a call in the middle of a deposition, and spiraling costs of litigation.    But more than merely failing to provide opportunities for young lawyers to see human drama played out, a lack of jury trial experience means that lawyers, and the clients they serve, are less comfortable with uncertainty. Uncertainty has always been the hallmark of the jury trial. No trial lawyer has tried a jury trial without a few surprises some pleasant and some decidedly unpleasant. We as humans crave, and are drawn to, watching uncertainties play out. Who among us thirty years ago would have guessed that reality TV would capture a nation's attention? Yet it has. So too, the human drama played out at a jury trial eventually captures even the most recalcitrant and stubborn juror's attention. Training lawyers to use the tools necessary to deal with the uncertainty of litigation and disputes is a part of the judgment that we as lawyers are trained to obtain and use on behalf of our clients. Yet, without the uncertainties of jury trials, there is no mechanism for developing this important skill.    Many of today's lawyers lack perspective. Their clients, cognizant that these lawyers lack the requisite training, are unwilling for them to represent a corporation's interest at trial. Therefore, the cycle feeds on itself. Fewer cases are tried, and fewer lawyers have the valuable experience of the jury trial.    D. The Emergence of Arbitration Arbitration first gained popularity based on a faulty premise that it would be a more efficient and more economic means of dispute resolution. While those were stated purposes, the reality today is that arbitration is another forum for litigation that increases the costs for participants because they are responsible for costs of counsel and the costs of arbitrators and the arbitral forum. Moreover, there is less predictability with arbitrators. Finally, when an arbitrator gets it wrong, there is little or no recourse.     For companies, arbitration was once seen as a net positive. After all, arbitration would be a forum in which companies would be repeat customers to the same group of arbitrators. What arbitrator would be likely to give harsh results to its future employer on future matters? If the matter were large enough, corporations also always had the opportunity to opt out of arbitration and demand litigation. If a deal was important enough, corporations dealing with other corporations could simply remove arbitration clauses.    Not so for the consumer. Consumers lack the bargaining power to remove arbitration clauses from the terms of most every purchase, whether for goods, for services, or for something as simple as the use of a credit card. Therefore, consumers, the same taxpayers who pay for the jury and civil justice system, are also asked to pay for a second system of dispute resolution for any complaints they have related to consumer goods they have purchased. And this forum was one in which those who decide consumers' claims will see business from their opponents again and again and again, but will only see the business of the consumer for his or her specific case. The consumer has neither constitutional guarantees, nor the ability to vote arbitrators into or out of office. Instead, the deference afforded to arbitrators' decisions by courts means that this non governmental body, paid for in addition to the taxes used to pay for the judicial system, can decide issues often without appeal.    Arbitration has evolved to require the same expensive and time consuming discovery process. It has proven to have some of the same uncertainties as litigation. Today, it exists primarily as a bar to consumer suits, and consumers will likely fight back to limit its use.    E. So What Can We as Lawyers Do For Our Future? While lawyers cannot make clients more willing to try cases rather than resolve them, we can as lawyers take responsibility for the system in which we practice.    . Rather than engaging in protracted discovery fights that serve no purpose other than to generate billings, we as lawyers can streamline the process. If documents, deponents, or information deserve to be a part of the litigation process, we can encourage our clients to do the right thing. Conversely, when material is clearly not part of the litigation process, we should not inject satellite litigation over requests that never should have been made.    . We can advise our clients not to obscure the truth or the facts, but rather to let the facts be known and craft a resolution that conforms to those facts.    . We can put gamesmanship aside.    . We can teach younger lawyers that despite the fact that they will not have a jury and judge watching over their conduct in depositions and in discovery practices, they should have pride in themselves and in this profession. We do so by the lessons we teach, the conduct we reward, and more importantly the conduct we model. All too often lawyers will do everything they can "get away with" outside the confines of a jury trial or judicial oversight. By modeling conduct that is inappropriate, we teach the lawyers who come after us that such practices are acceptable. And in doing so, we do a disservice to ourselves and our profession.    . We can encourage clients to understand that we have a vested interest in them obtaining the best outcome possible by the way we structure our fees. By making fees performance based rather than time based, clients will know our interests are aligned with theirs. And that way, they will understand that we believe not only in their case, but also in the system in which it will be resolved.    . We can also advise clients to believe in our judicial system, rather than arbitration. Arbitration is arbitrary. It lacks the protection of appeal that our judicial system provides. Arbitration does not have any of the guarantees afforded by the court system. In a nutshell, it is a costlier, less certain, and ultimately more destructive option for our clients and our judicial system. The more we can encourage clients to understand this, the better off our clients, and our country, will be. We must preserve the judicial system as a true means of resolving disputes. Without a means of resolving disputes in which people have confidence, they will eventually resort to self help, and no one wins when laws have no meaning.    F. Some Practical Thoughts    1. Professionalism . Make a conscious choice to respect the legal profession and the judicial system.    . Make a conscious choice to refrain from attacking judges, lawyers, and juries.    . Confine your condemnation to the conduct or the "sins" instead of generalizing it to the person or the "sinner."    2. Litigation . Improve your talents as a trial lawyer, not as a "litigator."    . Keep in mind that you should seek the best possible result for your client within the bounds of professionalism and fairness. Do not succumb to an attitude that "the ends justify the means."    . Learn that you are an important part of the process but not the center of the universe.    3. Mediation    . Remember that demagoguery and advocacy are not synonymous.    . Learn to use skills that help educate.    . Advocacy does not generally require anger; good rhetoric does not generally require rancor.    IV. Conclusion Litigation ethics has a future. Ethical rules are important. What we make of them is up to each one of us. Ethical rules help us remember that process is important. While the focus may frequently be on the result, how we get there is equally important. Ethical rules can help us remember that the ends do not justify the means unless we are ready to accede to those who believe they do.
           
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