A judge before whom I appeared recently told me that I have a "sense of old school ethics". Her comment surprised me, but after further consideration I found that she was right: I always wear a suit and tie in court; I stand up when I speak to a judge and treat witnesses and opposing lawyers with respect. I am decidedly "old school".
How sad. The fact that I am seen as an outlier in my profession speaks for the ubiquitous deterioration in legal practice. In a society that is increasingly being defined by the norms of reality TV, it seems that lawyers have found it acceptable to push buttons and break rules.
Win mentality at all costs
Michael Avenatti was sentenced to extortion for performing a classic "shake-down" for sports giant Nike: Pay me over $ 20 million or I'll publicize your misdeeds. Fortunately, the New York jury didn't buy Avenatti's argument that this is simply what tough, aggressive lawyers are doing.
But Avenatti is not alone. We are all witnessing the widespread introduction of a winning mentality that combines legal practice with Survivor competition, receiving a rose for a bachelor's degree, and stealing signs to "fix" major league baseball games. Yes, asking forgiveness is easier than asking permission, but some limits should never be exceeded.
In recent months, a California judge has imposed heavy sanctions on Morgan Lewis, an international law firm with around 1,900 lawyers, for abuse of discovery. Another judge denied sanctions against Tesla lawyer Sheppard Mullin, another international law firm, for similar alleged abuse of discovery. These were not mistakes made by junior lawyers; They were calculated strategies from reputable law firms.
The fact that lawyers have broken rules is no longer relevant. The news is that in at least one case, fines have been imposed that correspond to their misconduct.
How difficult it must be for judges to curb rogue lawyers in a legal wild west that wins at all costs. In my decades of practice, I've seen legal and ethical boundaries increasingly crossed, with judges simply raising their hands and looking away.
Since we complain that lawyers ignore the rules of court proceedings, it is also easy for us to reject basic rules of politeness. A California lawyer was recently removed from a case after sending explosive emails to the opposing lawyer, including one who told his opponent to "eat a bowl of tails". The lawyer argued that this was just a "negotiating tactic" that was "for reasons of effectiveness" and should not be seen as a personal insult. He claimed a constitutional right to freedom of expression and an absolute privilege for communication related to litigation.
The lawyer may not have broken any rules, but he has violated something even more fundamental: basic principles of courtesy and decency. How much deeper can the job sink?
There was a time not so long ago when legal practice was honorable and the trial was respected. Lawyers stood before a judge in court and addressed each other with appropriate and professional language and behavior. In England, both civil defense lawyers and lawyers are required to wear robes and, in many cases, wigs to bring a sense of formality and solemnity to the process. Imagine for a moment that American lawyers have to do the same. Would changing the attire remind lawyers that they are court officials and not rabid dogs fighting for a bone?
Bring back the old school ethics.
In today's "everything goes" culture, there is little that arouses and respects lawyers or the judicial system. People come to justice – as juries, witnesses, litigators and observers – and are faced with dilapidated buildings in many places. In Los Angeles, where I practice, it's not uncommon to find dirty hallways and dirty or broken bathrooms. In addition, there are lawyers in casual wear who exchange barbs with each other, use a language that was previously heard on television and pay little attention to the judge.
Is it any wonder that courthouses are no different from WWF defeat sites? Given that many of our politicians are lawyers, it's easy to understand why state houses across the country and the U.S. Capitol in Washington are considered places of filth. We hardly blink nowadays when our elected representatives behave dirty or hurl insults at each other across the aisle.
Imagine for a moment that we would bring the "old school ethics" back to the courtroom. Like the new corona virus, this germ could actually be contagious. If lawyers start their profession and their colleagues in accordance with their due respect, politicians can also learn to behave in a more civilized manner. Courtesy is the engine of communication, and hopefully legislators could learn what it means to get across the hallway.
It's been a long time since lawyers look in the mirror and take steps to the police. The rules – legal rules, ethical standards and principles of politeness – were not established for the purpose of pushing and violating, but to ensure a system of fairness.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
Gerald Sauer is a founding partner at Sauer & Wagner LLP in Los Angeles and specializes in employment law, commercial law and intellectual property law.