By:Peter Kellogg,
Chair, Business Lawyer’s Professionalism Subcommittee
If you look at the Jacksonville Bar Association’s website or at page 113 of the Daily Record Professional Directory, you will see the Jacksonville Bar Association’s Professional Guidelines for Business Lawyers. These guidelines are unique in the United States. The Business Lawyer’s Professionalism Subcommittee (which is a segment of the bar’s Professionalism Committee) performed research and found that there are no comparable guidelines provided by the American Bar Association, The Florida Bar, the National Transaction Association, or the Business Lawyer Association.
The Florida Bar establishes general guidelines for all
attorneys in the ideals and goals of professionalism. The Jacksonville Bar Association also has professionalism guidelines which is basically a restatement of the Trial Lawyers Section of the Florida Bar Guidelines. These guidelines are in common use throughout Florida, and have been adopted by many judicial circuits, including the Fourth Judicial Circuit in Florida. The text of the unique Business Lawyer’s guidelines is provided here.
THE JACKSONVILLE BAR ASSOCIATION’S
PROFESSIONAL GUIDELINES FOR BUSINESS LAWYERS
PREAMBLE
The Association recognizes that, although a large portion of its membership is actively engaged in litigation, there are many attorneys whose practices are devoted to the representation of clients outside the courtroom. While many of the Guidelines for Professional Conduct are equally applicable beyond the context of litigation, attorneys who engage in transactional law must also recognize their responsibilities with respect to courtesy and cooperation with their fellow professionals. This Addendum is intended to emphasize standards which are fundamentally applicable to all professional contacts among attorneys, but with a particular emphasis on those attorneys engaged in transactional law, recognizing that attorneys engaged in this type of practice may or may not be adversaries, and frequently represent clients who have common as well as disparate interests. For this reason, references to “opposing attorneys” should be read broadly, to include all attorneys who represent other parties to a transaction.
A. SCHEDULING
1. Attorneys should cooperate with each other when conflicts and calendar changes are necessary and requested.
2. Counsel shall never request a calendar change or misrepresent a conflict in order to obtain an advantage or delay. However, in the practice of law, emergencies affecting our families or our professional commitments will arise which create conflicts and make requests inevitable. We should be cooperative with each other whenever possible in agreeing to calendar changes, and should make such request of other counsel only when absolutely necessary.
3. Attorneys should notify opposing attorneys of scheduling difficulties as soon as they become known.
4. Meetings, conferences and closings with opposing attorneys and clients should be scheduled at the most practical location.
5. Attorneys should make every effort to appear promptly with their clients at scheduled meetings, and attorneys providing facilities for such meetings should be ready to receive the opposing attorneys and their clients at scheduled time.
B. COMMUNICATIONS
1. Counsel should at all times be civil and courteous in communicating with opposing attorneys whether in writing or orally.
2. Attorneys should promptly respond to communications from opposing attorneys whether by telephone, facsimile or correspondence.
3. Letters should not be written to ascribe to an opposing attorney a position he or she has not taken or to create “a record” of events that have not occurred.
4. Letters intended only to make a record should be used sparingly and only when thought to be necessary under all circumstances.
5. Attorneys should adhere strictly to all express promises to and agreements with opposing attorneys, whether oral or in writing, and should adhere in good faith to all agreements implied by the circumstances or local custom.
6. During the course of representing a client, an attorney should not communicate on the subject of the representation with a party known to be represented by another attorney in that matter without the prior consent of the other attorney.
C. DOCUMENTS
1. Counsel should not produce requested documents in a disorganized or unintelligible fashion, or in a way calculated to hide or obscure the existence of particular documents or information.
2. Document production should not be delayed to prevent an opposing attorney from inspecting or reviewing documents prior to scheduled meetings or closings or for any tactical reason.
3. Attorneys should not attempt to draft or request changes to documents in a manner to take unfair advantage of the other party or place unreasonable burdens on the other party.
4. A request for an opinion from opposing counsel should not require an opinion with respect to any matter which the requesting attorney, assuming an equivalent level of competence and knowledge, would not be willing to give, and should not require an opinion as to any matter outside the normal and customary scope of an attorney’s expertise.
5. Attorneys should not make any substantive changes to documents during course of revision without highlighting, redlining or other side clearly indicating the changes for the benefit of the opposing attorney.
D. RESOLUTION OF DISPUTES
Except where there are strong and overriding issues of principle, an attorney should raise and explore the issue of settlement or compromise of disputes in every matter arising during the course of any transaction as soon as enough is known about the matter to make such discussions meaningful.
E. CONDUCT
1. An attorney should always deal with parties and opposing attorneys with courtesy and civility and avoid undignified, discourteous or adversarial conduct.
2. Attorneys should be prepared in advance for any meeting or closing.
3. An attorney should avoid disparaging personal remarks or acrimony toward opposing attorneys.
4. An attorney’s word should be his or her bond. The attorney should not knowingly misstate, distort or improperly exaggerate any fact, opinion or legal authority and should not improperly permit the attorney’s silence or inaction to mislead anyone. Further, if this occurs unintentionally and is later discovered, it should immediately be disclosed or otherwise corrected.
Sub-paragraph B of these guidelines is outdated since There is no mention of the use of e- mails. The question we pose is whether the guidelines should be revised in any fashion at this time. Bar members are requested to reply to the subcommittee chairman, Peter Kellogg at Peter.Kellogg @ Liberty Mutual.com or at 346-5422.
If you would like to write an article about an ethical or professionalism experience that others in the Bar may learn from, please contact Caroline Emery, Chair of the Professionalism Column, at [email protected].