Evolving standards of litigator conduct in California

While all attorneys are subject to the same ethics rules and professional standards of care, the application of those rules and standards can differ depending on the type of law practiced. For example, attorneys closing a real estate transaction or negotiating the details of a corporate merger rarely are at risk for being sanctioned by a judge at the time of the transaction or merger. But litigators find themselves in a unique position by virtue of their practice.

Unlike some practices, litigation is by definition adversarial. It also poses unique risks to litigators, from both clients and courts, who tend to hold litigators directly responsible for the actions taken in litigation and the outcome.

Litigators are tasked with balancing zealous advocacy, candor to the court, the required standard of care, and applicable ethics rules. History has shown that, as society becomes more litigious, fulfilling duties to clients without overstepping ethical boundaries is increasingly becoming more of a challenge.

Identify the Appropriate Standard of Care

Both California's Rules of Professional Conduct and Business and Professions Code apply to all attorneys, including litigators, practicing in the state of California. Rule 3-110 of the Rules of Professional Conduct requires that every attorney perform legal services "with competence." Generally speaking, this means that litigators owe their clients a duty to perform legal services in accordance with the degree of skill, prudence, diligence and care commonly exercised by other attorneys.

As litigators employ new techniques, technologies and trial tactics, the application of the standard of care continues to change. For example, the State Bar's Standing Committee on Professional Responsibility and Conduct addressed attorneys' ethical duties when publishing information on social media websites, such as Facebook, Twitter and others. See Formal Opinion No. 2012-186. While the committee concluded that attorneys may share information about their practice on social media websites, postings may be subject to compliance with Rule 1-400 dealing with advertising and solicitation as well as sections of the California Business and Professions Code.

The practice of law continues to evolve - and so does the standard of care. Litigators who refuse to adapt to reflect these developments face the increasing risk that they will fall below the standard of care that the rest of the profession has embraced.

Recognize Conduct that Merits Sanctions

The duties owed to the court have not changed much, but judges' enforcement of them has. Over time, judicial tolerance for unprofessional or uncivil conduct has eroded. As a result, the number of orders sanctioning attorneys for such conduct continues to mount.

There are three things that tend to draw the ire of the bench. The first is ignoring or disobeying a court order. There may come a situation where an attorney is genuinely in doubt regarding what is actually required by an order. In that case, most attorneys will simply ask the court for clarification to avoid the risk of directly disobeying a court order.

The second is misleading the court. California attorneys owe a duty of candor to the court. Rule of Professional Conduct 5-200; Business and Professions Code Section 6068(d). The repercussions for an attorney who misleads the court can be serious. Not only does the attorney lose all credibility, but his or her license to practice may be placed in jeopardy.

The third path to trouble is to waste the court's time - not with argument, but instead with vitriol, acrimony and uncivil conduct. Of the three, this category has prompted the most dramatic change in how judges police the conduct of attorneys. Oftentimes, the net result is a shorter leash and quicker trigger, even from judges that an attorney may not have appeared before in the past.

The risk of an ethics violation is the potential loss of an attorney's bar license. Below are three ethics issues that merit special attention:

1. Preparing witnesses. Thoroughly preparing a witness usually requires an attorney to balance the desire to ensure a positive experience for the witness on the stand with the attorney's obligations not to coach the witness.

The Restatement (Third) of the Law Governing Lawyers Section 116 provides guidance to attorneys regarding how to effectively prepare a witness without improperly coaching her: "In preparing a witness to testify, a lawyer may invite the witness to provide truthful testimony favorable to the lawyer's client. ... Witness preparation may include rehearsal of testimony. A lawyer may suggest [a] choice of words that might be employed to make the witness' meaning clear. However, a lawyer may not assist the witness to testify falsely as to a material fact."

Similarly, California Rule of Professional Conduct 5-200 prohibits an attorney from presenting false testimony to the court. Violation of this rule could lead not only to discipline by the State Bar but also to criminal prosecution for subornation of perjury.

2. Dealing with media. Another important ethical area for litigators is publicity surrounding a trial or representation. According to Rule 5-120, "A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Attorneys, however, are allowed to make reasonable statements to protect their clients from "the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client." Rule of Professional Conduct 5-120(C). Thus, if the opposing party fires first, the attorney can consider taking reasonable steps to protect the client and to curtail the impact of those public statements. Under the rules, the rebuttal must be tailored and limited to that information that is "necessary to mitigate the recent adverse publicity."

3. Attorneys as witnesses. Rule 5-210 specifically prohibits attorneys from acting as trial counsel if they are likely to be a necessary witness in a jury trial. There are a few exceptions to this rule: (1) where the attorney's testimony relates to an uncontested issue; (2) where the attorney's testimony relates to the nature of value of legal services in the case (such as relevant to a motion for costs and fees); or (3) where the lawyer obtains the informed written consent of the client.

By recognizing these heightened risks and understanding how litigators are treated differently before the bar and the courts, attorneys can take steps to reduce their risk of a bar complaint or a malpractice claim.