By Deborah Greene
In April 1996, The Jacksonville Bar Association adopted the “Guidelines for Professional Conduct” promulgated by the Trial Lawyers Section of The Florida Bar (the “Guidelines”), which had also been endorsed by the Florida Conference of Circuit Judges. Many Circuit Courts in Florida also adopted the Guidelines, including the 4th Judicial Circuit. (See Administrative Order 98-10.) As the foreword of the revised Guidelines states: “In 1999 the Trial Lawyers Section of The Florida Bar undertook to rewrite the Guidelines to clarify certain provisions, to make certain provisions consistent with current law, and to eliminate certain provisions considered unnecessary because they were redundant of either a rule of civil procedure or a rule of professional conduct, which lawyers are expected to follow as minimum standards of professionalism.” The revised Guidelines were jointly promulgated by the Conference of Circuit Court Judges, the Conference of County Court Judges and the Trial Lawyers Section of The Florida Bar.
On Jan. 8, the revised Guidelines were officially adopted by The Jacksonville Bar Association and, along with the JBA’s Professional Guidelines for Business Lawyers, comprise The Jacksonville Bar Association’s Professionalism Guidelines. At its next meeting, the 4th Judicial Circuit Professionalism Committee will be asked to adopt the revised Guidelines and recommend to Chief Judge Donald Moran Jr. that he amend the Administrative Order to reflect the updated Guidelines. Details concerning the dissemination of the revised Guidelines will be provided in an upcoming article in the Financial News & Daily Record.
Although the general tenor and substance of the Guidelines remains unchanged, there are a number of deletions and changes of which practicing lawyers should be aware. The remainder of this article will summarize the revisions.
Preamble: The new Preamble to the Guidelines adds language to the effect that the “Guidelines are subject to the Florida and Federal Rules of Civil Procedure, the Florida Rules of Professional Conduct, and the specific requirements of any standing or administrative order, local court rule, or order entered in a specific case.”
General Principles: This is an entirely new section which reminds us of our duties as officers of the court, including that our word is our bond, that we should conduct ourselves with courtesy and professionalism, and that we should require persons under our supervision to do so as well, and that when consistent with our clients’ interest, we should cooperate with opposing counsel to avoid litigation and to resolve litigation that has already commenced.
Scheduling, Continuances, and Extensions of Time: Unchanged.
Service of Papers: Paragraphs providing that the time and manner of service should not be used to the disadvantage of the party receiving the papers, and that papers and memoranda of law should not be served at court appearances have been deleted (the latter being added to the section dealing with Memoranda, Affidavits and Declarations, as addressed below). A definition of “paper” has been added, and “paper” is now defined as “any written material that is to be filed with the court or other tribunal.” The revised Guidelines further encourage lawyers to send additional copies of papers by electronic mail, if possible, in addition to any other form of service employed.
Memoranda, Affidavits, and Declarations: The prior provision that written briefs, memoranda, etc. should not rely on facts that are not properly part of the record has been deleted. Additionally, the revised Guidelines provide that copies of any submissions to the court, whether correspondence, memoranda of law, case law, etc., should be simultaneously provided to opposing counsel by substantially the same method of delivery. Again, the revised Guidelines also encourage sending an additional copy of such submissions by electronic mail, if possible. The provisions related to discouraging the submission of papers, including memoranda of law, at court appearances, is moved to this section from the preceding section.
Communications with Adversaries: The provisions discouraging writing letters to make a record, adhering strictly to all express promises and refraining from communicating with persons represented by a lawyer without the consent of the opposing lawyer, were deleted. The new section, discussed above, entitled “General Principles,” now provides that our word is our bond and that we should adhere to all agreements and promises. The Rules Regulating the Florida Bar already address communications with persons represented by counsel.
Depositions: The provision which discouraged counsel from engaging in conduct during a deposition that would not be allowed in the presence of a judicial officer was amplified to make it clear that this includes “disparaging personal remarks, . . acrimony toward opposing counsel, and gestures, facial expressions, audible comments, or the like as manifestations of approval or disapproval during the testimony of the witness.” The revised Guidelines delete the previous provisions discouraging setting depositions prior to the depositions already set by opposing counsel. The revised Guidelines also delete the provision that counsel should not direct a deponent to refuse to answer questions unless the questions seek privileged information. This latter provision was presumably deleted inasmuch as it is already contained in existing law.
Document Demands: This section was substantially modified. Provisions discouraging seeking irrelevant documents or propounding very broad demands, using strained interpretations of demands to artificially restrict disclosure, withholding documents on the grounds of privilege unless truly appropriate, and production of documents in a disorganized and unintelligible fashion, have been deleted. These deletions were presumably made because the applicable rules of procedure or existing law already address these issues. The revised section now provides that when responding to an unclear document demand, the receiving counsel should discuss the demands with the propounding counsel so that the demands can be complied with fully, or so that appropriate objections can be raised.
Interrogatories: This section has been revised similarly to the section regarding Document Demands (as noted above). That is, the new section provides that unclear interrogatories should be discussed with opposing counsel to facilitate the response or the assertion of appropriate objections. Also, provisions related to strained and artificially restrictive reading of interrogatories and the use of interrogatories to harass or cause undue expense, have been deleted. Again, these items may have been deleted because the appropriate rules of procedure or existing law already address these issues.
Motion Practice: This section remains largely unchanged, except for the addition of language encouraging lawyers to avoid unnecessary motion practice by negotiating and agreeing with counsel when possible. The new section also states that before setting a hearing on a nondispositive motion, counsel should make a reasonable effort to resolve the issue.
Dealing with Non-Party Witnesses: This section, which was contained in the prior Guidelines, has been completely deleted from the revised Guidelines, presumably because the provisions thereof are already addressed in the various rules of procedure applicable to trial lawyers.
Ex Parte Communications with Courts and Others: The provisions that counsel should always notify opposing counsel of hearing dates obtained from the court for future hearing on the same day that the hearing date is obtained from the court has been deleted. The provisions dealing with providing copies to opposing counsel of all submissions to the court in substantially the same manner as used for the court’s copy was moved to the section dealing with submissions to the court (set forth above). Finally, the provisions that lawyers should be courteous and may be cordial to a judge, but should never show marked attention or unusual informality to a judge still remains, but the caveat that informality shown to a judge should be consistent with the attorney’s personal relationship with the judge has been deleted. This may be because “unusual informality” already encompasses the concept that if you have a personal relationship with a judge, then dealing with the judge outside of court with the informality appropriate to the nature of that personal relationship would not be “unusual informality.” The purpose or meaning of this revision, however, is not entirely clear.
Settlement and Alternative Dispute Resolution: This section remains unchanged.
Pre-Trial Conference: This section was deleted, presumably because it is addressed by the applicable rules of procedure, as well as administrative orders in various circuits.
Trial Conduct and Courtroom Decorum: This section contains a large number of deleted provisions, which are too numerous to list in detail in this article. Suffice it to say that a number of the items deal with matters that are probably already addressed by administrative orders, local custom or practice or which common sense dictates (such as being punctual and prepared for court appearances and standing as court is opened, recessed or adjourned, etc.).