by Caroline Emery
The Jacksonville Bar Associationís Professionalism Committee created the Judicial Sanctions Information Collection (JSIC) Subcommittee to increase the Bar membersí awareness of unprofessional conduct that is frowned upon by judges. The subcommittee has obtained information from thirty-nine state and federal trial court judges in Jacksonville.
The judges repeatedly complain about behavior that generally falls under one of three categories: court appearances, deceit and carelessness, and lack of respect for the judiciary. For those of you who missed out on reading about the first category, Part I was published on Nov. 17 in The Daily Record. Here are the judges Top 10 pet peeves falling under the second category, deceit and carelessness:
1) carelessness about attendance: being unprepared, coming to court without the file, missing hearings, oversleeping on mornings of mediation or hearings, showing up at the wrong chambers or courthouse, and being lazy, careless or lacking attention to details and deadlines;
2) carelessness and deceit about notices: failing to give notice to pro se litigants on ex parte matters, falsely representing to the court that giving notice was impossible or impractical, providing notice to the opposing party the night before a hearing, and writing a letter to the judge without copying opposing counsel;
3) carelessness and deceit about pleadings: seeking a default against the opposing party after agreeing to an extension of time to answer, representing a motion to be a consent or emergency motion when it really is not, exceeding the page limitation without prior court permission, filing abusive or baseless motions to disqualify, and filing pleadings while your license to practice is suspended;
4) deceit in arguing a position for which there is no legal or ethical basis or in arguing ambiguities that do not really exist;
5) carelessness by failing to talk to clients, especially in criminal cases, until just minutes before the pre-trial rather than 30 days prior;
6) deceit by stone-walling with improper, purposeful delay tactics (e.g., refusing to provide deposition dates and not disclosing witnesses) and by claiming unfounded discovery objections;
7) carelessness and deceit about orders: inserting a unilateral change in a proposed order without running it by opposing counsel and failing to carefully follow the court’s orders;
8) deceit and carelessness while treating the profession more like a business (e.g., having a financial self-interest that over-rides the client’s best interest, claiming to be unavailable for hearings at certain times because the firm sets aside that time to meet with clients);
9) deceit by trying to hide the truth from a jury with a baseless motion in limine to suppress unfavorable evidence or trying to bring in objectionable material during closing; and, probably the worst unprofessional act a lawyer could do (because it will forever tarnish one’s trustworthiness)
10) being deceitful to the court, which has been characterized by various judges as follows: losing credibility by virtue of pushing the truth (e.g., about what is in the file, what a case represents), being less than frank with the court, failing to be completely candid with the court, showing a lack of candor, being technically true or hyper-technical yet incomplete, misrepresenting things, telling blatant lies, claiming a false, uncollaborated excuse for a scheduling conflict or for unavailability for hearings, falsely blaming secretaries and clients for one’s own failure, failing to disclose law rather than disclosing it and making distinctions, not informing the Court of new charges in criminal cases, and just plain outright lying.
One judge suggested that the best response to give if opposing counsel lies to the court is to say, that is not my recollection, but I’d be happy to have you prove me wrong. Although the misconduct described above does not always rise to the level that justifies an imposition of sanctions, it does, at the very least, leave the judges with a lasting, negative impression. You run the risk of permanently and irrevocably damaging your reputation of professionalism with the judiciary. As one judge candidly remarked, “judges remember when lawyers misbehave in their courts.” We hope that with this realization, attorneys will make more of an effort to avoid doing anything that appears deceitful or careless.
This collection of data could not have been accomplished but for the assistance of John P. Cole, Abraham I. Bateh, Tonia Yazgi, Mary Bland Love, and E. Lanny Russell. Much gratitude is also owed to Kirk McCombs II, who chaired this subcommittee for the first two years. We hope that the generous time and effort provided by the judges and the subcommittee is instrumental in preserving the professionalism and good reputation of lawyers in our community.
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].