In his ethics and criminal practice column for the New York Law Journal, Adjunct Professor Joel Cohen looks at abusive behavior toward opposing counsel in litigation.
The Rules
Many of the cases concerning aggressive, or abusive behavior toward counsel arise in the civil context, although the results would seem to be the same. In the criminal realm, prosecutors are ethically bound to “develop and maintain courteous and civil working relationships with judges and defense counsel, and should cooperate with them in developing solutions to address ethical, scheduling, or other issues that may arise in particular cases or generally in the criminal justice system.” ABA Criminal Justice Standards: Prosecution Function 3-3.3(d); see Defense Function 4-7.2(a) for its requirements of courtesy and professionalism toward opposing counsel.
Those words are aspirational, but they don’t provide much in the way of guidance for the practitioner. Most lawyers who straddle both civil and criminal practice, and judges who preside over both, generally recognize that, for one reason or another, criminal adversaries are typically more civil to one another. Maybe it’s because prosecutors represent the government and more is expected of them by the judiciary or the chief prosecutor who employs them, or maybe it’s because defense lawyers have a client’s veritable freedom in their hands and are accordingly reluctant to enrage their adversaries. Whatever the reason, though, the rules of engagement and disciplinary consequences for offensive conduct by attorneys to one another should be the same for litigators in both the civil and criminal disciplines.
When courts turn to the NY Rules of Professional Conduct and ABA Model Rules of Professional Conduct, the primary bases for discipline are often the “catch-alls,” i.e., NY Rule 8.4 (d) (a lawyer shall not “engage in conduct that is prejudicial to the administration of justice”) or 8.4(h) (a lawyer shall not “engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”) See ABA Rule 8.4. Under the heading of Conduct Before a Tribunal, a lawyer “should not make unfair or derogatory personal reference to opposing counsel.” (NY Rule 3.3, cmt 13; cf. ABA Rules 3.3 and 3.4).
While not binding, the New York State Standards of Civility, 22 N.Y.C.R.R. 1200, App. A, are guidelines intended to encourage lawyers and others to “observe principles of civility and decorum”. They direct that lawyers should be courteous, respectful and cooperative and remind us that we can “disagree without being disagreeable.” See generally Federal Bar Association Standards for Civility in Professional Conduct (1998); ABA Litigation Section Guidelines for Conduct (“We will treat all other counsel … in a civil and courteous manner.”)…