Technical Competence
December 16, 2019 § 2 Comments
Are you technically competent enough to protect your clients’ interests and represent them zealously?
As Philip Thomas pointed out in a blog post last month, 37 states already impose a duty of technical competence in their ethical rules. Mississippi will probably be the 50th, based on past experience, but most of us will probably be around when the requirement is imposed in Mississippi.
So what is technical competence, anyway? Here’s how one proposed rule defines the duty:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject [My emphasis].
All of that looks like the existing duty to stay current with case law and changes in rules and practice EXCEPT for the highlighted language “including the benefits and risks associated with relevant technology.” That’s a pretty broad statement. What exactly is relevant technology?
Some benefits and risks are apparent to even the most technically illiterate person. For example, MEC, computer word processing, computer billing, and online research we can recognize are benefits. On the other hand, if you send an email with confidential information to opposing counsel, or if you send a document with unredacted metadata, or if don’t protect your servers from hackers, you soon find out what are the risks. I guess that’s part of what the rule considers “relevant technology.”
Those are fairly obvious and familiar to almost all of us. But there are developments in technology and the law that only a few know about and it will be a while, if ever, before they reach the mainstream. If I knew what they were, I’d itemize some for you. Are those cutting-edge changes included in what one is chargeable for?
As of right now, I think lawyers are already under a duty to understand the risks and benefits of internet communication, electronic discovery as practiced by the great majority of lawyers, wireless communication, metadata, and internet security, and to take appropriate steps to protect from or reap advantages out of them.
Fortunately, the number of older lawyers (my age group) who only a few years ago proudly boasted of computer illiteracy (“I don’t even know how to turn one on! Haw, haw, haw!”) is shrinking. Some of that shrinkage may be due to attrition, but I think mostly it’s due to the fact that they have come to understand that keeping up with changing technology, in some degree, is vital for survival in the profession.
One thing you might find helpful is to follow Mr. Thomas’s blog. He often touches on technical developments in the law.
Before You Click “Send” …
December 9, 2019 § 1 Comment
There is a difference between ethics and professionalism.
Ethics are the principles and values to which we adhere as a profession. Ethics set us apart as a profession and qualify us to call ourselves professionals. Our ethical standards are embodied in the Rules of Professional Conduct.
Professionalism, on the other hand, is the manner in which we go about the practice of our profession. Unlike ethics, there are no specific rules to follow to be professional. There is, however, the Lawyer’s Creed, which lays out a broad outline of what genuine professionalism looks like:
A LAWYER’S CREED
To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.
To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek to fairly resolve differences and, if we fail to reconcile disagreements, I will strive to make our dispute a dignified one.
To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.
To my colleagues in the practice of law, I offer concern for your reputation and well being. I will extend to you the same courtesy, respect, candor and dignity that I expect to be extended to me. I will strive to make our association a professional friendship.
To the profession, I will strive to keep our business a profession and our profession a calling in the spirit of public service.
To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through effective and ethical representation of my clients.
Over the past year I have heard of lawyers using social media to ridicule and criticize other lawyers and judges. One instance even involved a lawyer surreptitiously using a cell phone to record another lawyer in the courtroom and then posting it on social media with critical comments. I wonder how those lawyers consider that kind of conduct to “offer fairness, integrity, and civility”? Or how it makes their dispute “dignified”? How does that fit with “concern for your reputation and well-being” or “I will strive to make our association a professional friendship”? Would you want that demeaned colleague to show you the “same courtesy, respect, candor and dignity” that you showed them? And, in the case of the courts, how does it show “respect, candor, and courtesy”?
It’s no wonder that the legal profession is no longer held in high esteem by the public when its own members are publicly petty, spiteful, and whining toward each other, particularly in a forum where the person ridiculed or criticized has no way to respond. It’s actually a malignant growth on our profession that needs to be excised and eliminated.
And as for the courts, it is true that we have a First Amendment right to criticize a judge’s rulings, but that can be done in a respectful, reasoned manner that does not demean and call the court system into disrespect. Besides, just because you have the right to say something does not necessarily mean that it must be said. Sometimes it’s better to keep silent and be thought a fool than to open your mouth and remove all doubt.
The most damaging thing about this sort of conduct is how it diminishes the reputation of the one who posts it. It reveals an unattractive, sleazy character. It certainly reflects poorly on the poster’s professionalism. On which would you want people to judge your character: a petty, small-minded, ungracious comment; or your good judgment, uprightness, calm temperament, and graciousness? Honestly, I don’t care to have anything to do with people who do the former; and I strive to get to know better the people in the latter. I think most people are like me in that regard.
Before you hit that “Send” button, stop and think. Is that really how you want people to see you?
The Lawyer’s Duty Until the Order Allowing Withdrawal
October 28, 2019 § Leave a comment
As I mentioned here not long ago, filing a motion to withdraw does not get you out of the case. You are in it until the judge signs an order allowing withdrawal and the order is entered. You can read that post here.
Here is what the MSSC said about it:
We take this occasion to announce to the bench and bar and the state of Mississippi at large that any time an attorney undertakes to represent a client in any court of record in this state that there attaches at that moment a legal, ethical, professional and moral obligation to continue with that representation until such time as he is properly relieved by the court of record before whom he has undertaken to represent a client. This is true regardless of the circumstances under which his representation of that client may be terminated. This withdrawal may be accomplished only by the filing of a motion with the court with proper notice to the client. The attorney may then withdraw upon the entry of a written order by the court granting him leave to withdraw from representation of his client.
Myers v. Miss. State Bar, 480 So. 2d 1080, 1092-93 (Miss. 1985).
So, what if your client fires you? Do you get to simply walk away? No. You must first file a motion to withdraw, set it for hearing, and notice your client; or get your client to join in the motion. If opposing counsel doesn’t object, get her to sign an agreed order. If there is an objection by anyone, bring it on for hearing. Unless and until the judge signs an order letting you withdraw, you are in the case with every ethical and professional duty to your client. In Alexander v. Miss. Bar, 725 So. 2d 828, 831 (Miss. 1998), the court said, “A lawyer who improperly fails to withdraw after being discharged or when withdrawal is otherwise required is, in general, subject to professional discipline and, in litigation matters, to sanctions imposed by the tribunal … .”
What do you do if another attorney enters an appearance on your side of the case and it appears, but is not clear, that your client no longer wants to deal with you? Can you just stop participating? No. Unless and until you go through the procedure above you continue to have every ethical duty to that client.
What if you discover that mandatory withdrawal is required, such as when further representation would result in violation of ethical rules or the law? Can you stop representing the client? No. You must file a motion and obtain an order. Unless and until you do, you continue to have every ethical duty to that client. Alexander, supra.
And keep in mind that even though you may have have disengaged from the client in your mind, you may have to continue representation if the court disapproves your request. “[T]he lawyer may not withdraw when the lawyer holds the stated belief of a significant disproportion between the detrimental effects that would be imposed on the client by the contemplated withdrawal against detrimental effects that would be imposed on the lawyer or others by continuing the representation.” Restatement (Third) of the Law Governing Lawyers, § 32, cmt a.
_______________________
The authority cited is from Jackson and Campbell, Professional Responsibility for Mississippi Lawyers (2010), § 7.5.
Reprise: Draftsmanship is Part of Your Job
October 22, 2019 § Leave a comment
Reprise replays posts from the past that you might find useful today.
Say What You Mean and Mean What You Say
January 4, 2016 § 1 Comment
Lee and Leslie Voulters were divorced from each other in 2004 on the sole ground of irreconcilable differences. The divorce judgment incorporated their PSA, which provided that Lee would pay Leslie lump-sum alimony in the sum of $1.08 million at the rate of $10,000 a month until paid in full. He also agreed to maintain a policy of life insurance on his life with a benefit of $1.08 million, with Leslie as beneficiary.
When Leslie filed a contempt action in 2013 charging Lee with missing some lump-sum payments and with failing to provide proof of life insurance, Lee counterclaimed, asking the court to interpret the PSA that the purpose of the life insurance was to protect Lee’s payment of lump-sum alimony, and that the obligation would terminate when the lump-sum alimony was paid in full.
Spoiler alert: There is no provision in the PSA that links the life insurance requirement to the lump-sum-alimony requirement.
Here are the pertinent parts of the agreement:
LUMP SUM ALIMONY/SPOUSAL SUPPORT
Lee shall pay spousal support to Leslie, in the form of lump sum alimony, the total sum of $1,080,000.00, payable in monthly installments of $10,000.00 each for a period of nine years. Such payments for support shall be due and payable by automatic bank transfer from Lee’s checking or other account directly into Leslie’s checking account, commencing on the fifth day of April, 2004, and shall so continue for one hundred and seven consecutive months thereafter. Lee’s obligation to pay such support to Leslie shall be fully vested upon the entry of a Final Judgment of Divorce in this cause, and shall not be modifiable. Lee’s obligation to pay such support shall not terminate upon Leslie’s death or remarriage, nor shall it terminate upon Lee’s death. However, despite the conventional definition of lump sum alimony[,] . . . these payments by Lee to Leslie under this Agreement shall be taxable to Leslie, and deductible by Lee, for state and federal income tax purposes.
LIFE INSURANCE
Lee agrees to maintain life insurance on his own life in an amount not less than one million, eighty thousand dollars ($1,080,000.00), naming Leslie as primary beneficiary thereon. Proof of such insurance coverage shall be furnished to Leslie within fifteen (15) days following the date of execution of this Agreement. Furthermore, Lee shall direct his insurance carrier to provide coverage information to Leslie at least twice a year if requested by Leslie.
. . . .
EFFECT OF AGREEMENT
. . . .
The respective rights and obligations of the parties hereunder are deemed independent and may be enforced independently irrespective of any of the other rights and obligations set forth herein. This Agreement contains the entire understanding of the parties, who hereby acknowledge that there have been and are no representations, warranties, covenants, or understandings other than those expressly set forth herein.
RELEASE AND WAIVER
Subject to the provisions of this Agreement, each party has released and forever discharged . . . his or her heirs, legal representatives, Executors, Administrators, and assigns . . . from all causes of action, claims, right or demands . . . in law or in equity . . . except . . . causes of action for divorce or separation action now pending . . . . Each party releases, waives, and relinquishes any and all rights . . . to share in the estate of the other party upon the latter’s death . . . . (Emphasis added.)
Both parties offered testimony about their intent in negotiating the language into the agreement. Lee argued that the agreement was ambiguous because it had no termination date. Leslie argued that she negotiated it for support, which she needed because her estate was meager in comparison to Lee’s.
One question before I tell you how the chancellor ruled: do you see anywhere in that language quoted above any link between the life insurance obligation and the lump-sum alimony?
The chancellor ruled that the agreement was unambiguous, and that it did require Lee to maintain the life insurance regardless of the status of the lump-sum payments. Lee appealed.
On December 8, 2015, the COA affirmed in Voulters v. Voulters. The opinion by Judge Barnes includes a nice recitation of the law of contract interpretation, life insurance and insurable interests, and even attorneys fees in contempt actions and on appeal. I definitely commend it to your reading.
What I want to focus on here is this: If you want your agreement to mean a particular thing, then make sure there is language in it that says that particular thing. Remember that when the judge is called on to interpret a contract, she is bound by the language within the four corners of the document, and she may not accept parol evidence to vary or “explain what the parties meant” by those terms unless she first finds the agreement to be ambiguous. Just because Lee did not include a termination date for his life insurance obligation, that did not render the agreement ambiguous. It rendered instead the meaning that it had no termination date. In other words, it meant exactly what it did and did not say.
Be careful in your draftsmanship. Take time to make sure it says exactly what your client needs it to say. I think I was saved a hundred times or more by the simple practice of drafting the agreement and setting it aside for at least a day. I would then pick it up and read it afresh, often catching something that could be read two ways, or was simply not clear enough to do the job. Sometimes I would imagine myself to be another person altogether, looking at it as an outside observer. Anything to get an objective perspective.
Remember that some day someone entirely unconnected with the negotiations and the emotion of the divorce case is going to be reading your work with absolutely none of the knowledge that you had when you drafted it. It may be a judge, or it may be another lawyer having to represent your client, or — heaven forbid — a lawyer looking for a cause of action against you. That’s why it’s critical when you draft an agreement to give some thought and care to the words, phrases, and language construction that you use. That’s what your client is paying you for: to have absolutely no more trouble out of this matter after the final judgment is entered.
Filing A Motion Doesn’t Get You Automatic Relief
October 7, 2019 § 1 Comment
MRCP 7(b)(1) reads, “An application to the court for an order shall be by motion … .” A motion, then is merely a request for the court to enter an order; it’s not the order itself.
Put another way: a motion for continuance does not get you that continuance until the judge enters an order continuing; a motion to withdraw from representation does not get you out of the case until the judge signs an order letting you out.
This is basic stuff, but some lawyers don’t seem to get it.
In one case a couple of months ago a lawyer did not show up for a final hearing. The other attorney advised that he had filed a motion to withdraw the afternoon before, but he did not appear to present it to the court. He also did not provide a paper copy of it to the court as required by the MEC rules since it was within 24 hours of trial. As things developed, though, I doubt that I would have granted his motion because, as became painfully obvious in the course of the hearing, his client had an intellectual disability and struggled to present her side of the case. Struggled mightily. That earned that lawyer a show-cause order.
While I’m on the subject of motions to withdraw, has anybody read UCCR 1.08? Does anybody have a copy of it? Well, here it is in its elegant simplicity and entirety: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”
It’s not enough to file the motion and present an agreed order signed by you and your client. It’s not enough to file a motion and present an agreed order signed by you and opposing counsel. As I have often said in chambers, “Give me an agreed order or set it for hearing,” meaning for a motion to withdraw to get your client and opposing counsel to sign off on it or set it for hearing.
I have had lawyers file motions for continuances and then call my staff attorney asking whether they have to show up. We always offer to hear those in chambers before the trial date if the lawyers both are willing to come. Often the reason is that the lawyer has a conflicting setting in another county. My question is: why would you take a case knowing you have a calendar conflict without first calling opposing counsel to see whether she will agree to a continuance? I know, you need the fee. But you are causing everyone a problem, the judge in particular (ok, that’s from my perspective).
When an Untimely Post-Trial Motion Results in a Timely Appeal
September 17, 2019 § Leave a comment
If you file a motion for a new trial later than ten days after the judgment is entered and the other side does not object, allowing the judge to rule on the motion, does your motion for a new trial toll the time to appeal?
Yes, said the COA in the case of Brown v. Blue Cane Water Assoc., et al., decided June 4, 2019. This is how Judge McDonald’s opinion addressed the issue:
¶21. Although the parties do not raise the issue, this Court must first determine that it has jurisdiction to consider this appeal. Hamilton v. Southwire Co., 191 So. 3d 1275, 1279 (¶15) (Miss. Ct. App. 2016); Gallagher v. City of Waveland, 182 So. 3d 471, 474 (¶13) (Miss. Ct. App. 2015). After reviewing when the final judgment, the motion for a new trial, and the notice of appeal were filed and recent precedent, we determine that we do have jurisdiction to consider the merits of the issues on appeal. In the past, we had strictly enforced the time limits for filing appeals in cases where post-trial motions are not timely filed. But these rules have been relaxed.
¶22. Mississippi Rule of Appellate Procedure 4(a) states that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed from.” M.R.A.P 4(a). Certain post-trial motions will toll this thirty-day deadline, including a motion for a new trial filed under Mississippi Rule of Civil Procedure 59. (The law had once provided that the extension of time to appeal operates only if the post-trial motion itself is timely filed. Brand v. Barr, 980 So. 2d 965, 962 (¶¶10-11) (Miss. Ct. App. 2008).) Under Rule 59(e), motions for a new trial must be filed within ten (10) days of the judgment. Moreover, a paper is not “filed” until the clerk actually receives it. Bolton v. Illinois Cent. R.R. Co., 218 So. 3d 311, 313 (¶8) (Miss. Ct. App. 2017). In Byrd v. Biloxi Regional Medical Center, 722 So. 2d 166, 168-69 (¶12) (Miss. Ct. App. 1998), we held that “an untimely filed Motion for Reconsideration will not excuse an untimely Notice of Appeal, and clearly will not create or confer jurisdiction in this court.”
¶23. The Mississippi Supreme Court relaxed this strict enforcement in Wilburn v. Wilburn, 991 So. 2d 1185 (Miss. 2008). In that case, the chancery court issued its modification order on June 1, 2007. Wilburn, 991 So. 2d at 1191 (¶12). Counting weekends, the response was due on June 11, 2007. Id. The ex-wife filed a “Motion for Reconsideration” one day later on June 12, 2007. Id. The motion was denied and timely appealed. Id. at 1190 (¶8). The Mississippi Supreme Court applied established precedent and found that the motion for reconsideration was untimely. But the Court further found that because the husband did not object to the timeliness of the motion when it was before the chancery court, he was procedurally barred from raising the issue for the first time on appeal. Id. at 1191 (¶13). The Court proceeded to consider the appeal on its merits. Id. at 1192 (¶14).
¶24. We recently applied Wilburn in Massey v. Oasis Health & Rehab of Yazoo City LLC, No. 2017-CA-00086-COA, 2018 WL 4204207 (Miss. Ct. App. Sept. 4, 2018). In Massey the circuit court granted a motion to compel arbitration on November 9, 2016. Id. at *4 (¶11). Massey filed a motion to alter or amend the judgment under Rule 59 on November 22, 2016—one day late. Id. at *5 (¶16). Massey’s motion was denied and appealed within thirty days of the denial. Id. at (¶17). We reviewed prior cases that dealt with the timeliness of an appeal when a motion for new trial or reconsideration was not timely filed in the court below. Id. We noted the Mississippi Supreme Court’s ruling in Wilburn v. Wilburn, supra,
which created an exception to the bar of hearing an appeal if the timeliness of a post-trial Rule 59 motion is not challenged before the trial court. Id. at *6 (¶18). Following these precedents in Massey, we held:
Here, just as in Wilburn, Massey filed his Rule 59 motion one day too late, and Oasis responded to the motion on the merits—without objecting to the motion as untimely. After the circuit court denied Massey’s Rule 59 motion, Massey filed a notice of appeal. Just as in Wilburn, Massey filed his notice of appeal within thirty days of the order denying his Rule 59 motion, but more than sixty days after entry of the underlying order. As to the issue of appellate jurisdiction, there is no material difference between this case and Wilburn. Under Wilburn, we have jurisdiction to address the appeal and the merits of the underlying order compelling arbitration.
Massey, 2018 WL 4204207, at *6 (¶20). The special concurrence in Massey noted a similar holding found in Carter v. Carter, 204 So. 3d 747 (Miss. 2016), that the lack of an objection to an untimely Rule 59 motion procedurally bars an appellee from raising the issue of timeliness on appeal. Massey, 2018 WL 4204208, at *15 (¶59) (Greenlee, J., specially concurring). The concurrence pointed out that the Carter decision cited federal case law, saying:
Our supreme court seems to recognize, as the United States Supreme Court did in Bowles, [Fn 4] that “procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion . . . .” Bowles, 551 U.S. at 212, (quoting Schacht v. United States, 398 U.S. 58, 64 (1970)). New Mississippi ground is being broken. . . .
Massey, 2018 WL 4204207, at *15 (¶61) (Greenlee, J., specially concurring).
[Fn 4] Bowles v. Russell, 551 U.S. 205 (2007)
¶25. In this case, the final judgment was signed on December 15, 2017, and filed with the clerk on December 18, 2017. The Browns had ten days to file their motion for a new trial (i.e., December 28, 2017). Browns’ counsel indicated in his certificate of service that he served the motion on Blue Cane’s counsel by mail on December 27, 2017 (a Thursday). But the clerk did not file the motion until January 3, 2018, which was seven days later and sixteen days after the judgment was filed.
¶26. Blue Cane responded to the motion for a new trial but did not challenge its untimely filing. On January 23, 2018, the chancery court denied the motion for a new trial in an order filed with the clerk on January 26, 2018. A notice of appeal was filed on February 2, 2018. Both Wilburn and Massey are directly on point. Although the Browns’ Rule 59 motion was not timely, Blue Cane did not object. Pursuant to Massey and Wilburn, we find that we do have jurisdiction to proceed to a ruling on the merits.
Two thoughts:
- “A paper is not filed until the clerk actually receives it.” Crucial point. In paper-filing districts, the motion is not filed until the clerk enters it on the docket, per MRCP 79(a). Mailing it to the clerk, or even handing it to the clerk, does not accomplish this. MEC overcomes this problem.
- Sometimes we go along in order to get along. Your pal, hunting buddy, and fellow church member, who happens to be opposing counsel, approaches you and says, “Man, I screwed up and filed that R59 motion a day late; I hope you’ll give me a pass on that so I won’t look bad.” You could say “<wink> <wink> Sure, pal, no problem, I know you’d do the same for me.” But it would be more in line with your professional responsibility to your client to say, “I hate that for you, but I have to object to timeliness to protect my client; I hope you understand.”
Ineffective Assistance of Counsel in Chancery
August 7, 2018 § 2 Comments
Can a lawyer be held to have provided “ineffective assistance of counsel” in a chancery court proceeding?
That’s what Elle Adams argued in her pro se appeal from a chancellor’s determination to hold her in contempt for denying her child’s father visitation.
In Adams v. Rice, decided June 12, 2018, the COA through Judge Barnes answered in the negative:
¶34. Finally, Elle argues that her counsel was ineffective. In January 2016, the attorney at issue [Fn omitted] entered an appearance. She later represented Elle at the hearing on March 31, 2016, where Elle failed to appear. Elle complains that her counsel “belittled” and “mocked” her at the beginning of the hearing by explaining to the chancellor that Elle had contacted her several times about being unable to travel to the hearing due to a sick child. Elle also criticized her counsel for advising her that she would “lose the case” if she was absent from the hearing.
¶35. Elle’s argument is procedurally and substantively without merit. The Sixth Amendment right to effective assistance of counsel is triggered in criminal proceedings, not family-law matters. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (discussing the standard of ineffective-assistance-of-counsel claims in the context of criminal proceedings). Notwithstanding the impropriety of the claim, this Court has reviewed the transcript and found, as the chancellor noted at the hearing, that Elle’s attorney “did a good job” representing Elle’s interests in her absence. Counsel apparently tried to impress upon Elle the importance of her appearance and the impact her absence could have on the outcome of the case. Elle’s accusations about her counsel are unfounded, and her argument is without merit.
The opinion points out that Elle hired and fired several lawyers and represented herself through the course of the case.
I point this case out only to underscore what you already know if you have practiced any family law at all: there are some clients who will criticize you and even file bar complaints against you no matter how hard you work for them, and even when you produce a good outcome. It comes with the territory of being a lawyer. Judges get it, too. The chancellor in this case was accused of bias and prejudice, and even sued in federal court, over her handling of the case. Once Elle learned a little about how to wield the law as a weapon, she scattershot every target in sight.
As for ineffective assistance, sadly there are lawyers who should never set foot in a courtroom as an advocate. But the overwhelming majority of lawyers are effective, conscientious, zealous, and competent in pursuing their clients’ interests. None of those attributes, however, alone or in combination, will shield you from the wrath of an irrational client.
Self-Appendectomy
July 17, 2018 § 1 Comment
Comments on this blog are limited to lawyers, judges, and other legal professionals. Yet I still get comments frequently from lay-people.
A recent proposed and unapproved comment by a frustrated pro se litigant highlights the tension between reasonable access to justice and the judge’s role as impartial tribunal:
I had a Judge finally rule that all evidence from previous case could be submitted to this new case. Of course, Defendants lawyers objected. Defendants lawyer then said that not of it was evidence, some were marked for I.D. only. The Judge said he wouldn’t even look at the I.D. ones. Being Pro Se, after spending about 8,000.00 on attorneys fees and not using my evidence, almost every bank statement, cancelled check sheet from the bank. I was asked by Judge, “What is it? I said a bank statement. Other attorney objected, said it was hearsay, and I had to put it in as I.D. After a couple times I just handed it to the other attorney but the Judge stated I had to say what it was. Therefore, it was objected to as hearsay. Printouts from a bank. Please..Check written out the casinos, lawsuits Plaintiff was hit with and depleted our funds, are not admissible. I.D. only which the next Judge will not use. I always thought that was depleting marital assets. Writing a brief for Supreme Court and this is way out of my league.
Some thoughts:
- In a contested case, the judge absolutely can not assist one side or the other over evidentiary hurdles, objections, or lack of basic litigation skills. A judge who does so has crossed, or is dangerously close to crossing, the line into advocacy.
- I have often said that I have never seen anyone who acted pro se in a contested case leave the courtroom in better shape than when they entered.
- ” … this is way out of my league.” Yes, it is. It takes lawyers around 3 years to absorb the basic knowledge base and elementary analytical skill to know how to get into the courtroom, and several years of experience on top of that to do a creditable job in litigation. Appellate cases require even more. There is a learning curve for every courtroom advocate. It’s painful to watch a pro se litigant try to master the same curve in a few hours that took a college-and-law-school-trained lawyer several years to master herself.
- The lawyer in this case was zealously representing his client, which is precisely his ethical duty. It may have seemed unfair to the pro se litigant, but she was not being treated unfairly; she was simply overmatched, and, again, the judge could not help her without becoming her advocate.
- No judge is going to let a lawyer overreach and take advantage of a pro se litigant, but that is solely in the interest of maintaining a neutral, fair playing field. A judge can not help one side to its benefit or to the other’s detriment.
Limited Scope Representation and Disclosure of Services
July 3, 2018 § Leave a comment
Before limited-scope representation, I think it was pretty clear that a lawyer who prepared papers for a person to use in court had to show on the paperwork that he had prepared it.
Since limited-scope representation, the answer has been unclear. Until now.
The Mississippi Board of Bar Commissioners has addressed the question with an Ethics Opinion. The text of it is here:
ETHICS OPINION NO. 261
OF THE MISSISSIPPI BAR
RENDERED JUNE 21, 2018
The Ethics Committee has asked to respond to two questions:
Is it ethical for a lawyer to prepare documents for pro se litigants?
If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?
APPLICABLE RULES
Rules 1.2 and 8.4(c) of Professional Conduct are applicable to this opinion. The relevant portion of these Rules provide:
Rule 1.2 Scope of Representation
(c) A lawyer may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Comment
Services Limited in Objectives or Means. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage.
A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.
Limited scope representation is an important means of providing access to justice for all persons regardless of financial resources. Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record. Within litigation, lawyers may limit representation to attend a hearing on a discrete matter, such as a deposition or hearing, or to a specific issue in litigation.
Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1
And,
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
ANALYSIS
(1) Is it ethical for lawyers to limit the scope of their representation to discrete aspects of a matter?
Yes. The 2011 amendments to the comments to Rule 1.2, set out above, expressly provide that a lawyer may provide limited scope representation on behalf of a client. Such limits can involve merely drafting a document or advising a client on how to proceed in a matter without undertaking a full representation. This is commonly referred to as unbundled legal services. It is important for lawyers to remember two important aspects of this type of limited scope representation. First, is that the lawyer does represent the client to the extent of the limited scope representation, and the full panoply of ethical obligations (including the obligation of confidentiality under Rule 1.6) apply to the representation. Second, a lawyer’s ethical obligations under Rule 1.4 require that the lawyer ensure that the client fully understands what it means to limit the scope of representation to discrete aspects of the representation and the consequences of the limited representation. For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.
(2) If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?
No. The issue is whether a lawyer who has prepared a document to be filed with the court, but who does not enter a general appearance, must indicate on the document either the lawyer’s name or that the document was prepared by a lawyer. Some federal courts and some ethics opinions have found the lawyer’s failure to disclose his/her involvement to be misleading or dishonest to the court in violation of Rule 8.4(c).[1] The deception here is that the tribunal or opposing counsel could believe that the party has received no professional help at all, when in reality a lawyer has provided some assistance. As a result of this failure to disclose the client may receive more lenient treatment by a court who believes the party is proceeding pro se – unware of the limited representation provided.
While sensitive to these concerns, the Committee does not believe that a lawyer’s undisclosed limited representation is a deception as contemplated by Rule 8.4(c). A court presented with a lawyer-drafted document and a pro se litigant appearing to defend or argue that document, would be aware of the nature of a lawyer’s involvement. If not, the court can always inquire from the litigant whether a lawyer assisted in preparing the document. The unlikely event that a court will be misled into providing leniency to a pro se litigant under these circumstances does not outweigh the strong public policy set out in the Comment to Rule 1.2, encouraging lawyers to provide limited scope representation without having to enter an appearance. The Committee is concerned that lawyers will be dissuaded from providing limited representation if required to disclose their involvement.
There are two additional points to make about this opinion. The first is that a lawyer cannot utilize the limited scope representation to actively and substantially participate in a matter without disclosure. This opinion contemplates that the lawyer is performing discrete aspects of representation. On-going representation of a client without disclosure would be misleading and a violation of Rule 8.4(c). Second, this opinion is based solely on the Rules of Professional Conduct and a lawyer’s ethical obligation and does not address any questions of law.
Writing Tools that Every Lawyer Needs to Have
July 2, 2018 § 7 Comments
Judge Griffis had this post on his blog last month, and I think it’s a list that both lawyers and judges can benefit from.
16 books judges should own if they want to write well
Here is a link to an article from the National Judicial College. Yes, 16 books you need to own.
By Julie Oseid and Randall Tietjen
Three conventional dictionaries:
1. Merriam Webster’s Collegiate Dictionary (10th edition) [Now in its Eleventh Edition]
2. The Oxford English Dictionary (5th edition)
3. The American Heritage Dictionary (6th edition) [Could not find a link to the 6th, even on Amazon; this link is to the 5th]
One legal dictionary:
4. Black’s Law Dictionary (10th edition)
Two English usage books:
5. Modern English Usage by H.W. Fowler
6. Garner’s Modern English Usage
One legal usage book:
7. Garner’s Dictionary of Legal Usage
Three style guides:
8. The Chicago Manual of Style. Good advice on punctuation and style, plus handy information about copyright and fair use.
9. The Redbook: A Manual on Legal Style by Bryan Garner
10. Plain English for Lawyers by Richard Wydick
Beyond the reference books:
11. Elements of Style by Strunk & White. This book has likely been on your bookshelf since college, but it is well worth revisiting with some regularity.
12. On Writing Well by William Zinsser. This book will make you want to be a better writer.
13. On Writing by Stephen King. Yes, that Stephen King.
14. The Sense of Style by Steven Pinker
15. 30 Days to Better English by Norman Lewis. Good for improving your vocabulary.
16. Typography for Lawyers by Matthew Butterick. It explains how effective communication depends on document design, including how words look on a page.
My only pushback is three dictionaries. For most of us, one good one is all you need. And I think the OED is overkill; unless you’re serious about etymology and harbor a secret ambition to be an English scholar, or unless you just want to appear scholarly and impress academics, you’d do just fine with either of the more popular dictionaries.
Speaking of dictionaries, I read Word by Word: The Secret Life of Dictionaries, by Kory Stamper, a lexicographer with Webster who describes how words are selected to be included or excluded in a dictionary, as well as many other arcane facts about them (I know, I am a nerd). As she points out, Webster’s philosophy is to include words and usages as they come into the mainstream of the language (e.g., “waiting on” has become predominant in everyday language as a synonym for “awaiting” as well as “serving,” and either is proper usage) rather than the philosophy of American Heritage, which is to defend proper usage against all incursions (e.g., “waiting on” means serving, not awaiting, and it is improper to use the term in the latter sense).
I have to sympathize with Judge Griffis on at least one salient point: he sees a lot more of lawyers’ writing than I do. What comparatively little I see is sometimes unclear, rife with grammatical and usage errors, and downright unenjoyable to read, so that I just skip to the citations and read the cases.
The Better Chancery Practice Blog 