Dealing with the Intruder

February 23, 2015 § 2 Comments

In an earlier, more genteel era, it was unheard of that one lawyer would talk with a party already represented by another lawyer without that lawyer’s permission. Okay, maybe not unheard of, but certainly not considered acceptable behavior.

Nowadays, though, I’m hearing lawyers telling me about receiving emails from other lawyers to the effect that “I’ve talked to your client and she’s firing you; I’m sending you the paperwork in a couple of days.” It’s a dog-eat-dog world out there, I guess.

Two situations I heard of lately:

First: Lawyer One is preparing for trial and receives a letter from Lawyer Two to stop whatever One is doing because Two is going to substitute in the case and take over for trial. What is One to do?

Second: Attorney One receives a letter from Attorney Two that the executor of the estate wants One out, and Two in. The letter includes allegations of impropriety committed by One, with veiled threats of action, and enclosed is an affidavit of the executor confirming the contents of the letter.

Before going any further, I need to add that in both cases the second attorney never did make that appearance. In the first case, Lawyer Two simply never followed through. In the second case, Attorney Two sent a brief email saying he had decided not to get into the case.

The underlying principle here is that once a lawyer enters an appearance in a case he is in it until the judge signs an order letting him out. Just because another lawyer claims to be poaching the client, or the client says “you are fired,” does not relieve the lawyer of his responsibility to the court. As the lawyer of record, you are in it until the judge lets you out.

In Scenario One above, the dilemma is that the lawyer is prepping for trial, and now is in a quandary as to whether to continue to invest time in the case or get out. An obvious first step is to contact the client immediately to get some clear directions. If the client clearly wants the attorney out, or if the client will not communicate, the lawyer should file a motion immediately with the court asking for directions, spelling out the communication from the other attorney. She should do it without delay, because judges tend to be loath to further postpone a case that has been riding the docket for a while, and getting the judge to vacate a rare trial date is an uphill climb. She should give notice of hearing to the attorney on the opposing side, of course, and also the interloping lawyer, as well as the client. In this scenario there is always the option to cut the client loose — represented or not — provided it results in no irreparable harm.

In Scenario Two, the problem is that the Uniform Chancery Court Rules require the fiduciary to be represented by a lawyer. Most chancellors hew strictly to the rule and will not allow the lawyer who has entered an appearance to get out unless and until there is a replacement. Still, I would file a motion as soon as possible, with notice to the fiduciary and the interloping lawyer, asking the court for directions.

In both scenarios, while motions are pending I would continue to do whatever needs to be done to protect the client’s interest, such as meeting deadlines for identification of experts, issuing subpoenas, and so on, knowing full well that I might not be compensated for it. You can’t assume that the judge will let you out, so you have to do what needs to be done.

The question remains whether it is ethical to confer with a person about a matter in which the person is already represented by a lawyer. MRPC 4.2 clearly prohibits a lawyer in a case from communicating with another represented party about the subject matter of the case without permission of that party’s lawyer. It says that “In representing a client, a lawyer shall not communicate about the subject matter of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so” [Emphasis added]. Here’s what Professors Jackson and Campbell have to say about it:

Rule 4.2 is sometimes misinterpreted as preventing a lawyer from having contact with any represented person. As noted, the rule only applies if the lawyer himself has a client in a matter. For example, sometimes a represented client will seek to discuss her case with a second disinterested lawyer (who has no other client in the matter), as in circumstances where the client is considering firing the existing counsel to hire the second lawyer. Such conferences can be socially useful, as these consultations can give the client a second opinion regarding her representation. Such consultations can also give the client an opportunity to determine whether the client is being adequately represented at reasonable rates.

It is not unprofessional for the second disinterested lawyer to discuss options with the represented client Rule 4.2 does not apply in such contexts. The second lawyer does not need permission of the client’s existing counsel in order to have such a consultation with the represented client. Some lawyers are hesitant to “look over another lawyer’s shoulder” or to speak ill of another lawyer’s work. Others may not want to interfere with another lawyer’s client relationships. Any reluctance the second lawyer may have discussing the work of client’s existing counsel may be based on professional courtesy or on other factors. However, again, Rule 4.2 is not implicated in these consultations. [Footnotes omitted]

J. Jackson and D. Campbell, Professional responsibility for Mississippi Lawyers, § 21-3 (2010).

If you find yourself in the position of the interlopers above, do everyone a favor and refrain from notifying pre-existing counsel that you are going to jump in until you are absolutely certain that you are going to do it. Just because a person visits with you and extracts some advice from you does not necessarily make that person a client for court purposes. If you quoted a fee and made it clear that you will not enter the case until you are paid the agreed sum, there is no need to act until it has been paid.

Lawyers and Character

October 10, 2014 § Leave a comment

Somebody once said that character is how you behave when you think no one is watching. It’s the way you really are, without pretense or appearances. It can reflect nobility or brutishness, generosity or avidity, honesty or mendacity.

There are lots of ways to look at and describe character. The Inside Counsel Blog postulates Five Traits of Highly Effective Trial Lawyers: Credibility; civility; confidence; curiosity; and competitive spirit. I certainly can’t argue with those five C’s. If you will read the article, I think you will agree. But those are measures of what makes an effective trial advocate.

I am talking about the character traits that a lawyer should have. Here are my own Most Desirable Character Traits for Lawyers, all of which overlap and contribute to each other:

  • Honesty. The lawyer is scrupulously honest and candid in all her dealings with the client, the court, and opposing counsel. There is never a question of the lawyer’s integrity.
  • Professionalism. The lawyer is civil with opposing counsel, and candid and respectful of the court. All of the lawyer’s work product reflects quality and attention to detail.
  • Diligence. Filings and appearances are timely. The lawyer does what needs to be done when it needs to be done. The lawyer zealously represents the client’s interests within the bounds of ethics and the law.
  • Trustworthiness. The lawyer’s word is his bond. The court and opposing counsel can rely on the lawyer’s promises, case citations, representations in pleadings, and other statements. The trustworthy lawyer is never a liar.
  • Competence. Undertakes responsibility for cases within the scope of his or her abilities, and refers out or associates competent counsel in cases beyond his or her skill level. Studies the law and keeps current with hand-downs. Stretches his abilities via study, and seeks advice from more experienced counsel.
  • Skepticism. Questions behind the client’s representations as to the facts. Never lets the client dictate litigation strategy or tactics. Critically examines statutes and case law for new approaches. Rejects “conventional wisdom.” Does her own thinking.
  • Objectivity. Maintains enough distance from the client’s emotions in the case so that he is able to offer dispassionate advice uncolored by personal involvement.
  • Proportionate Sense of Self-Worth. The lawyer is neither an egotist nor a doormat. Maintains a realistic sense of his or her abilities, strong and weak points, and knowledge of self.
  • Devotion to the law. The lawyer is proud of the profession, and strives to uphold its highest ideals. Promotes respect for the law and the legal profession in his or her dealings with clients, judges and other lawyers, and in the community.

I am sure you can come up with some more.

My all-time favorite list of character traits, that I return to again and again, is in Galatians 5:22-23: Joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control.

The Value of Your Professional Reputation

September 3, 2014 § 3 Comments

Not too long ago, I posted here about the value of your reputation with the court. It’s a subject that can not be overemphasized.

Yesterday, Philip Thomas added an eloquent post on topic: Mississippi Judges Stress the Importance of Professional Reputation.

It’s not only important reading for young (or “Baby” in Mr. Thomas’s parlance) lawyers, but also for more experienced, jaded lawyers who might have begun letting the concept slip from their grasp. 

 

The Two Types of Lawyers

July 31, 2014 § 7 Comments

There are as many ways to categorize lawyers as there are lawyers, I suppose.

Just off the top of my head, here are a few that come to mind, presented as dichotomies: professional and unprofessional; learned and ignorant; court room and office; courtly and obnoxious; prepared and unprepared; rich and poor; pit bull and diplomat; tenacious and doormat; zealous and lazy; melodramatic and understated; scholar and street smart; and so on.

Lawyers and non-lawyers alike can come up with an almost unlimited number of similar categories.

To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.

If you think about it, much of our legal system rests on the trustworthiness of a lawyer in his or her dealings with the court. The judge relies on the lawyer to be candid and truthful in pleadings, evidence, legal citations, and statements.

The trustworthy lawyer never knowingly makes a false representation to the court, and promptly notifies the judge when he or she discovers that something presented proves to be untrue. He or she is timely and accurate in probate and fiduciary matters, and stays in contact with the fiduciary. The trustworthy lawyer’s pleadings are in order and are accurate. When the trustworthy lawyer cites a case, it is on point. The trustworthy lawyer distinguishes unfavorable law, and acknowledges the weaknesses of his or her case, suggesting how the court can and should address them to the client’s advantage. The trustworthy lawyer is never caught in a lie because she or he never lies. If the trustworthy lawyer has overlooked a court appointment, he or she apologizes and acknowledges the mistake, rather than fabricating a half-baked, incredible excuse. The trustworthy lawyer is in control of his or her case, and never lets a client dictate strategy and tactics. He or she will withdraw from representing a client before allowing that client put him or her in a position of dishonesty, trickery, craftiness, or misrepresentation. A trustworthy lawyer’s word is his or her bond.

A lawyer who can not be trusted is one who has proven that his or her word is worthless. The untrustworthy lawyer tells the court things that prove to be untrue, and bends the truth to the client’s advantage. His or her pleadings are full of allegations that can not be supported by any facts. The untrustworthy lawyer tries to hide the truth from the court, citing only law that is favorable, suppressing what is unfavorable. When caught in a lie, he or she persists in falsehood and makes up flimsy explanations. He or she files incorrect, incomplete and false accountings in probate matters, and regularly loses contact with the fiduciary. The untrustworthy lawyer can not be relied on to be on time or prepared; the judge worries that the client is being prejudiced by poor representation. The untrustworthy lawyer does what the client wants her or him to do, even if it is underhanded and unethical.

There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign.

I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.

The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.

When a lawyer presents case after case as emergencies demanding urgent attention, and those cases prove to be anything but, that lawyer’s trustworthiness takes a hit.

When a lawyer’s accountings in probate matters are full of inaccuracies and miscalculations, and loses track of the fiduciary, that lawyer’s trustworthiness takes a hit.

When a lawyer files motion after motion asking the court to address minutiae and praying for sanctions to rain down on the opposition, that lawyer’s trustworthiness takes a hit.

When a lawyer wastes the court’s and everyone else’s time with frivolous matters that have no chance of success, that lawyer’s trustworthiness takes a hit.

Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.

Wow. Just Wow. Part Deux

July 23, 2014 § 9 Comments

It was only month before last that I posted in Wow. Just Wow about a plaintiff’s attorney who failed to appear on time before a MSSC panel for a show-cause hearing, and kept digging his hole deeper as he addressed the court. He was fined and ordered to contact the lawyers’ assistance program.

Well, it appears that the lesson did not take. Here’s what the court ordered last week:

EN BANC
2013-IA-00181-SCT

Vicksburg Healthcare, LLC d/b/a River Region Health System v. Clara Dees; Warren Circuit Court; LC Case #: 10,0151-CI; Ruling Date: 01/22/2013; Ruling Judge: Isadore Patrick, Jr.; Disposition: Attorney Michael E. Winfield shall appear before this Court on Thursday, July 24, 2014, at 10:00 a.m. and show cause, if any he can, why he should not be held in contempt for failing to pay timely to the Clerk of this Court the sanctions imposed in the May 2 order. Winfield shall file a response to Vicksburg Healthcare’s Motion to Hold Appellee in Contempt and Second Motion to Hold Appellee in Contempt on or before July 14, 2014. Counsel for Vicksburg Healthcare shall appear at the show-cause hearing on Thursday, July 24, 2014, at 10:00 a.m. and present Vicksburg Healthcare’s Motion to Hold Appellee in Contempt and Second Motion to Hold Appellee in Contempt. Winfield is hereby given notice that a finding of contempt could result in one or more of the following: (1) having the Appellee’s Brief struck; (2) entry of a judgment in favor of Vicksburg Healthcare; (3) an order that he pay the entire $2,586 in attorney’s fees incurred by Vicksburg Healthcare; (4) suspension or disbarment; or (5) incarceration until Winfield purges himself of contempt. A copy of this order shall be forwarded to Winfield’s client, Clara Dees, at the mailing address provided by Winfield to the Clerk of this Court. Order entered.

Ouch.

New CLE Requirement for New Lawyers

July 18, 2014 § 6 Comments

The MSSC yesterday published a new CLE requirement for new lawyers. The change takes effect July 1, 2015.

The change will mean that newly-admitted lawyers will be required to undergo a new-lawyer program to be created and administered by the Commision on Mandatory Legal Education. Currently, lawyers are exempt from CLE requirements in their first year of practice.

This is the new language:

 Each attorney newly licensed to practice law in the State of Mississippi, from and after August 1, 2015, shall, by the conclusion of the second CLE year occurring after their date of admission to The Mississippi Bar, attend or complete a new-lawyer program approved by the Commission on Continuing Legal Education, which shall be comprised of a total of twelve (12) actual hours of CLE to include six (6) hours of basic skills training and six (6) hours of ethics/professionalism. Completion of the new-lawyer program shall satisfy the requirement of subsection (a) of this Rule for such newly licensed attorney for both the CLE year of admission and the next succeeding CLE year.

Attorneys newly licensed to practice law in the State of Mississippi, but previously admitted to the practice of law in another state, may be exempted from completing the six (6) hour basic skills training component of the new-lawyer program. To qualify for this exemption, within three (3) months of admission to The Mississippi Bar, the newly licensed attorney must submit an affidavit to the Commission on Continuing Legal Education, providing the date or dates of admission in every other state in which the attorney is admitted to practice and a declaration that the attorney has been actively engaged in the practice of law for five (5) or more years immediately prior to admission in this state. Upon submission of a timely affidavit, the newly licensed attorney shall be required to complete the six (6) hour ethics/professionalism component of the new-lawyer program within nine (9) months, after which time the attorney will be required to comply with the annual CLE requirement prescribed in Rule 3(a). Attorneys eligible for the exemption prescribed herein who fail to timely submit the required affidavit shall be required to complete the new-lawyer program in its entirety.

I give the concept an A+. Especially the ethics and professionalism component. I’ll withhold grading execution until I see the curriculum and the results.

But I hope new lawyers won’t think this few hours of classroom time will season them somehow into competence.

It takes a lot of hard work to develop a person into a lawyer. A law degree and admission to the bar are merely your permission to commence that process. And it takes help; you can only do it imperfectly on your own.

There’s a clear difference between a young lawyer who has had the benefit of mentoring and one who has not. The problem is that there are many young lawyers who never have the benefit of mentoring. Some are merely “thrown into the fire” by lawyers in their law firm because that’s how they themselves learned, or out of indifference, or in the mistaken belief that the youngster learned how to practice law in law school. Some are on their own and never seek out a mentor, and no one ever offers. Some think they know it all and do not need a guiding hand. All of those approaches are misguided and only render the young lawyer’s growth process either far more difficult or even doomed, because practicing law nowadays is far too complicated to figure out without help.

Can a few hours of lecture and a sheaf of forms substitute for wise, gray-haired advice and assistance? I insist not.

If you are a young lawyer feeling your way awkwardly along the foggy, snare-laden landscape of the law, I encourage you to seek out an experienced, ethical lawyer and make arrangements for him or her to give you advice and guidance on how to practice the law you learned about in law school. Offer to carry his or her briefcase to trial to see how it is done. Ask about what it takes to do a title opinion. Seek out that wise counselor to help you resolve ethical and practical questions that come up for which the answers are not immediately obvious to you.

Law school introduces you to how to think like a lawyer (analytical thinking), the basics of the law, and how to find the law. That’s about 10% of what is involved in the practice of law. The other 90% you will have to master through your own efforts and with help.

So I look at this new requirement as a positive step. But not a substitute for the strenuous process of becoming a lawyer.

Wow. Just Wow

May 6, 2014 § 5 Comments

I am continually amazed, confounded and stupefied at how nonchalantly some lawyers approach their professional duties to their clients.

Thank goodness that most of the shoddiness I witness falls in the venial category — that merits only remonstrance and mere trial judge disgruntlement — usually involving minor dilatory, tardy, and unpreparedness misconduct, and resulting in few legal fatalities.

It’s one thing to step on a chancellor’s toes, but it’s an entirely different ballgame to run afoul of the Mississippi Supreme Court. Jane Tucker offers up this recent breathtaking example in which counsel for appellee had been ordered to appear before a panel of MSSC justices at 1:30 to show cause why he should not be sanctioned for asking for and getting extensions for, and then not filing, an appellee’s brief. Oh, and this same panel had sanctioned another dilatory lawyer earlier in the day, so whatever benevolence they had started the day with had been whittled away. Here’s Jane’s take:

Vicksburg Healthcare v. Dees – this is an interlocutory appeal from the denial of summary judgment in a med mal case where the plaintiff is seeking damages for bed sores.  The case against the nursing home went to arbitration.  Vicksburg Health Care moved to dismiss based on the plaintiff’s failure to have expert testimony regarding the alleged malpractice.  When the motion was denied, it filed a petition for interlocutory appeal which was granted.  Here is its brief

It is almost 2:00 and the attorney for Dees has not appeared. The weird thing is that there is no requirement that the appellee file a brief. There’s no default rule automatically reversing a case if the appellee fails to file a brief.(I’m not advising that appellees not file a brief, of course). I know from my own experience that when the appellee does not file a brief and there is oral argument, the appellee does not get to make an argument. (I was representing the appellant that time). Apparently Dees’ attorney made three requests for extensions (as explained in this order) and never filed a brief which is why her attorney was hit with a show cause order. The lesson here, then, is that if you are the appellee and you are too busy to file a brief, don’t ask for extensions. Here’s the response to the show cause order.

Dees’ attorney finally arrived. So the first question he is asked is why he was late. Not a good start. Same panel as this morning. Generally my method of fixing a screw up is to apologize, apologize, apologize. This attorney is taking the opposite tactic.

The Court recessed before starting with the show cause hearing. They came back and sanctioned him $500 for being tardy.

Another lesson – keep your address listing with the Miss. Bar current.

Lesson 3: if you’re scheduled for a show cause hearing at the Miss.S.Ct., don’t be late. And if you are late, don’t tell the Court you had an emergency meeting with a client in Canton.

The Miss.S.Ct. has always been extremely understanding when it comes to extensions for time. As far as I know, no one was ever executed in this state after having had their brief refused because it was a day late (that would be Virginia). It is one of the many reasons I would much rather practice in the Mississippi Supreme Court than the Fifth Circuit. I hope a few bad apples don’t screw it up for the rest of us.

All in all, this is painful. I may be having nightmares about this for years. It is so bad that the panel is exceedingly concerned about the attorney’s other cases. Justice Kitchens asked him whether there were people who would be going to jail if he screwed up their cases like he screwed up this one.

At 3:49 the Court recessed to deliberate. Dees’ attorney was told to stay and await a ruling.

Ruling: Around 4:30 the panel reconvened and ordered the following: the brief filed on behalf of Dees on February 26, 2014 at around 9 p.m. with the guard’s office that doesn’t appear on the docket and wasn’t served on the Appellant will be accepted. The $500 for being late to today’s hearing will be paid at $100 a month starting June 1. Dees’ attorney will also have to pay $1500 in expenses to the lawyers for the Appellant at $100 a month. Also, he is to report to the Miss. Judges and Lawyers’ Assistance Program within ten days. Since the Court cannot force him to do this, if he does not do this the Court will have the transcript of the hearing sent to the Miss. Bar to do with it as it sees fit. A copy of the order will be sent to Ms. Dees. Justice Randolph expressed some dismay at the fact that these show cause hearings used to be few and far between but that this was the third one this year.

Jane sent a few more observations from the debacle for me to add here:

The address thing was because I think he said he did not get the first order to show cause which was contained in this order.  https://courts.ms.gov/Images/Orders/700_97223.pdf  He said he did not have a scretary and that he had abandoned his P.O. Box without having his mail forwarded.  This did not go over well AT ALL.
 
At the beginning he was asked why he was late and he told them about a client having an emergency in Canton but it turned out it wasn’t an emergency hearing it was a meeting.  WHen he was late, the clerk (Kathy, I’m pretty sure) called and asked him what was going on and he told her either that he forgot about it or didn’t know about it so the justices questioned him about that and he stated that he had failed to calendar it. I’m pretty sure it was Randolph who later said that if he were told to show cause at the Miss.S.Ct. he would have come a day early and camped out. 
 
Indeed.
 
I guess some lawyers think that the judge will not detect how deficient their performance is. But any judge can tell you that there is a huge and immediately perceptible difference between lawyers who are professional and those who are not. And I will bet that there is as much of a correlation between professionalism and success as there is between lack of professionalism and lack of success.

In this case, all I can say is “Wow. Just wow.”

And, by the way, if you’re not a regular reader of Jane’s Law Blog, you’re missing out on a super resource.

A FEW THOUGHTS ON A LEGACY OF PROFESSIONALISM

May 15, 2012 § 3 Comments

Attorney Thomas Henry Freeland, III, of Oxford, died last Saturday. His daughter Lee’s brief, but touching, obit is posted on son Tom’s blog. You can read it here.

Mr. Freeland’s friends knew him as Hal. I did not know him, but from what I read about him he was one of those lawyers who set high standards for himself and demanded the same from those who worked with him. The respect he earned is clear in the comments on Tom’s blog.

One of those comments, by attorney Danny Lampley of Tupelo, brought me up short, and I hope he and Tom will forgive me for copying a part of it so you can read it here:

Small things I would overlook as an ignorant clerk were revealed to be important. I recall Hal crossing out incorrect phrasing in an acknowledgment and telling me the correct words to use; and he took the time to tell me why those words were better and explained how doing it one way would have an effect different from doing it the other way. I learned that just because everybody says “the law” is thus and such and “the cases say so” does not mean that is really “the law” nor is it necessarily what the cases said. I learned you gotta read ‘em and you have to understand what it is exactly that they say. I learned to always independently research an issue and to never assume that a rule is today what you thought it was yesterday. I learned how to be a lawyer; I only wish I could more often put it into actual practice.

Mr. Lampley learned how to be a lawyer from one who took professionalism seriously and who understood the care, devotion and attention that the law demands. Beyond learning the craft of lawyering, though, he learned the meaning of professionalism. And — this is important — there is a distiction between ethics and professionalism. Ethics requires that you practice in a way that conforms to both the letter and the spirit of rules of conduct. Professionalism is the style in which you approach and carry out those ethical requirements. Professionalism demands more than mere observance of the standards, Or, as Justice Mike Randoph told a gathering of chancery judges a few months ago: “The rules are the basic minimum. We expect much more than that.”

If you are a young lawyer, I encourage you to seek out a battle-scarred old warhorse who would be willing to be your mentor. If you are as fortunate as attorney Lampley, you will learn that mastery of the legal profession lies not in discovering the shortcuts, but rather in learning to love the hard work, devotion, attention to detail, study, creativity and long hours that it takes to achieve excellence.

Mr. Freeland left his family his own personal legacy, including two children who are, themselves, members of our profession. But far more than that, as those blog comments reveal, he left the legal profession richer by inculcating professionalism in those whom he mentored. I hope that someone will be able to write that about all of us when our days reach their end.

PROFESSIONALISM AND THE GAL

April 23, 2012 § Leave a comment

Mississippi Supreme Court Justice Randy Pierce and I were invited to address the Ole Miss GAL Certification CLE program not too long ago about “Professionalism and the Guardian ad Litem; A View from the Bench and Beyond.”

Here are the professionalism principles for GAL’s that we came up with. I hope they provide some food for thought for you GAL’s laboring in the vineyard, and some general standards for judges who deal with GAL’s.

1. Competence. A GAL is required to maintain the required certification. Beyond that, the GAL must maintain CLE and demonstrate knowledge, skill, thoroughness and preparation.

2. Promptness. Complies with the court’s deadlines and does everything possible to move the case forward. A GAL does not delay the cause without justification.

3. Diligence. Interviews all witnesses and reviews all relevant evidence to ensure that the appropriate action is taken for the best interest of the children. Investigates to discover any pertinent information not disclosed by the participants. A GAL does not neglect to perform the task assigned. Timely submits a written report addressing all relevant considerations.

4. Fairness. The GAL’s duty is to protect the best interest of the children, not to advocate for any of the litigant parties. The GAL must have no conflict of interest. The GAL maintains neutrality and the appearance of impartiality consistent with this duty.

5. Zeal in protecting the best interest of children. Pursues the best interest of the children actively through reasonably available means permitted by law and the rules of professional conduct.

6. Knowledge of the applicable law. Is current in the law applicable to the case, and develops legal authority to support the GAL report.

7. Candor with the court. Communicates with the court through properly noticed pleadings as to all matters affecting the best interest of the children, the cooperation of the parties, any impropriety, and need for a change in the role assigned.

8. Fidelity to the role assigned. Acts within the scope of the role assigned by the court.

9. Independence. Maintains and exercises independent judgment about the best interests of the children.

10. Willingness to accept appointments. Rule 6.2 of the Rules of Professional Conduct requires that lawyers not seek to avoid appointments except under certain specified conditions. The fact that the appointment would be controversial or unpopular is not in and of itself a disqualifying factor.

CONTEMPT OF CLERK

March 27, 2012 § 12 Comments

Not too long ago I pointed out to a young, out-of-district lawyer that the lawyer had failed to get the chancery clerk to mail a copy of the publication summons to the defendant’s last-known address and note the fact on the docket, and that I could not sign the judgment until that requirement had been met.

Later, in the clerk’s office, I was told to my chagrin that the lawyer had entered in a huff, tossed the process on the counter, and said “The judge said that y’all messed up and didn’t send the process to the defendant.” The unhappy barrister complained that about a wasted trip from [somewhere far away to the west], and demanded that the clerk send the process by certified mail immediately, and then left in a cloud of dust, no doubt headed back to the more rarified and privileged atmosphere from whence that poor soul had descended into what I am sure the lawyer considered to be our little backwater corner of legal hell.

Not to be too picky — or prickly — but I never told that lawyer that the clerk had messed up. Nor did I instruct counsel to have the process mailed by certified mail (which the poor clerk did anyway at her own expense … Rule 4 only requires regular mail). And I certainly did not suggest to the lawyer to blame it all on the clerks, or even that the clerks were to blame at all.

This unfortunate episode illustrates what that sage chancellor, Frank McKenzie of Laurel, aptly characterizes as “Contempt of clerk.” It’s conduct that I’ve described here before.

Let’s face it: the chancery clerk is in a unique position to make your job as a lawyer enjoyably easy at one extreme or excruciatingly painful at the other, with myriad shades of gray in between. You get to choose how you get treated by how you deal with the clerks.

In this particular case, when the lawyer filed the process, the lawyer should have made a simple request of the clerk to mail the process, and should have provided a copy for the clerk to do so, and should have asked the clerk (politely) to do it right then so that she could watch the entry being made on the docket. And should have done so politely.

Now, you may ask “Why should the lawyer take responsibility to do that when MRCP 4 clearly says that the clerk is the one who shall mail, etc.” Well, there are several considerations that come into play:

  • You may look high and low in the rules, and you will find no penalty for the clerk failing to mail the publication; on the other hand, you and your client pay the price if you do not see that it is done.
  • You, not the clerk, are responsible for the proper handling and processing of your case.
  • As a practical matter, how are the clerks to know that this needs to be done in a given case unless you tell them? Chancery clerks are busy handling hundreds of transactions, many of which involve minute details, and you are merely one more customer among many, many. No matter how important you think that you and your case are, every other customer feels exactly the same way.
  • The easier you make the clerk’s job, the more likely it is that it will be done to your satisfaction.

Part of making the clerk’s job easier is human relations. It doesn’t take much sense to realize that a pompous, arrogant, demanding jackass will experience a certain level of customer service, and a polite, cooperative, prepared professional will have an entirely different experience. Vinegar vs. honey.

In my opinion, there is never a reason to treat clerks in a demeaning or rude fashion. Ever. For one thing, they are in a demanding job and they are doing the best they can do. For another, they are an important arm of the courts, and they deserve the same respect from you as a professional that you show to all other court personnel.

The penalty for contempt of clerk can be drastic. Would you rather get a call the day after you mailed that complaint telling you that you had neglected to enclose a check for court costs, or would you rather find out six weeks later that your pleadings have been setting on a desk awaiting your check? I’m not saying that a clerk would be so unprofessional as to do something like that intentionally, but with scarce resources, clerks have to triage matters, and, human nature being what it is, butterflies draw more favorable attention than dung beetles.

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