by David P. Ackerman, Published November 2010
Any reasonably alert lawyer is aware of Palm Beach County’s Standards of Professional Courtesy, and perhaps other similarly framed standards promulgated by The Florida Bar and other groups. Our judges have made it clear that they expect lawyers appearing before them to comply with these standards. Good lawyers know that behaving professionally makes them better advocates for the client’s cause. A departure from professionalism standards makes the lawyer look ignorant or bad and by extension, the client’s interests suffer. Some clients readily understand the need for a lawyer to act professionally on their behalf. Their personal moral character or organizational culture encourages those who act for them to behave courteously and to remain focused on the merits of the issue before them. They do not need the lawyer to call upon them in a contractually binding way to behave morally. So too, some lawyers do not need codes to influence their behavior. They know by following their own moral compass how to stay on the high road.
In The Florida Bar’s Ideals and Goals of Professionalism, there is a standard which encourages lawyers to address litigation tactics with a client:
7.4 A lawyer should counsel the client against the use of tactics designed: (a) to hinder or improperly delay the process involved; or (b) to embarrass, harass, intimidate, improperly burden, or oppress an adversary, party or any other person and should withdraw from representation if the client insists on such tactics.
Another standard encourages lawyers to counsel other lawyers:
1.2 A lawyer should counsel and encourage other lawyers to abide by these ideals of professionalism.
Standards 7.4 and 1.2, Ideals and Goals of Professionalism, The Florida Bar.
But some lawyers complain that their clients insist that they litigate “aggressively” and then the standards fall by the wayside. Or other clients, when a lawyer is faced with opposing counsel’s departure from the standards, insist that their lawyer respond in kind.
How do we make our clients aware of the Standards and Ideals and the need to adhere to them, even when opposing counsel misbehaves? One way is by asking a client to agree that they apply in an engagement letter.
Engagement agreements with clients usually cover the scope of work and the basis upon which legal fees and costs will be billed. Many engagement agreements contain the client’s agreement that it is responsible for providing truthful and accurate information to the lawyer. Our firm’s agreement also calls upon the client to take measures to preserve documents and electronically stored information. Some firms ask clients to acknowledge that the advice rendered is the result of judgment and experience and that there can be no guarantee that the lawyer will accurately foresee changes in the law.
Should we now ask clients to agree that we will follow Palm BeachCounty’s Standards of Professional Courtesy and The Florida Bar’s Ideals and Goals of Professionalism? I posed this question to Brian F. Spector, an experienced litigator and adjunct professor at the Florida International University College of Law and the University of Miami School of Law whose classes include Professional Responsibility and Liability. He agreed that the Standards and Ideals “can and should be referenced in the engagement letter, with the express acknowledgement by the client that the lawyer’s engagement will be bound by the principles contained in those documents.” Brian goes further to advocate that a lawyer should also “seek an agreement from the opposing lawyer to likewise be bound” by the Standards of Professional Courtesy.
General Counsel for the Carlton Fields law firm, Peter J. Winders, agrees. Some clients “like a show” and enjoy seeing what appears to be their lawyer “beating up” the other side. Pete once conducted a survey of the lawyers in the firm’s Tampa office to test this misconception. There was a lawyer with whom the Tampa lawyers often opposed who was routinely bombastic and combative, often violating standards of professional conduct. Pete’s poll showed that none of the lawyers who had litigated with this particular lawyer had ever lost any significant matter to him. Pete concluded that smart and successful lawyers adhere to the standards of good conduct and that this conduct promotes their client’s interests. “The object is not to win a shouting match; the object is to win the case.”
So here is a possible provision to include in an engagement letter:
In our jurisdiction we are obligated not only to adhere to the Rules of Professional Conduct and the Ideals and Standards of Professional Conduct promulgated by The Florida Bar, but also the Standards of Professional Courtesy promulgated by the judges of this circuit and the Palm Beach County Bar. These standards, for example, provide that lawyers should agree to reasonable extensions of time and to provide opposing counsel with authorities on which we will rely at any hearing. It is sometimes the case that opposing counsel do not comply with these standards, but you agree and recognize that we will do so, even in the absence of compliance by opposing counsel. Experience has taught us that we will be better able to serve your interests in court if we stay on the high road at all times. It is good lawyering and good strategy to believe that all we do before the court and every paper we file creates an impression of your case. Our behavior has to be, both in reality and in perception, a genuine effort to provide the factual basis and the legal authority needed to allow the court to rule in your favor in the case.
If your client is driven mainly by a cost/benefit approach, you can cite Judge Middlebrooks’ decision in Lee v. American Eagle Airlines, Inc., 93 F. Supp. 2d 1322, 1334 (S.D. Fla. 2000). Judge Middlebrooks drastically reduced the hourly rate component of a legal fee claim by a plaintiff in an employment dispute. Judge Middlebrooks held, “[U]nprofessional and disruptive conduct of counsel which prolongs the proceedings and creates animosity which interferes with the resolution of a cause can be considered in determining an award of attorney’s fees.” As the trial got underway, one of the offending attorneys said loudly to his client, “Let’s kick some ass.” The court reduced one attorney’s hourly rate from $300 an hour to $150 an hour for his pretrial work and $0 for his trial work; the other attorney’s rate for the case was reduced to $0. The judge stated that the two attorneys’ conduct in the litigation of the case fell “far below acceptable standards” and was at odds with their claimed $300 hourly rate. Unprofessional conduct cost this client real dollars.
Our job as lawyers requires us to help clients have realistic expectations. The engagement letter is a good place to start the process. But it is not enough: communication and education about how the standards are a part of successful litigation practice continue throughout the engagement.