Archive for the ‘Professionalism’ Category

Hold Everything — the Notice of Unavailability does not freeze the trial court — and may not be filed in the appellate court

Monday, November 26th, 2007

In Tenderloin Housing Clinic v. Sparks, 8 Cal. App. 4th 299 (1992), the court of appeal upheld sanctions against an attorney for scheduling depositions and court hearings after being informed that opposing counsel would be unavailable during that time frame.  As the court explained,

“it is widely held that ‘An attorney has an obligation not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.’ … The rule set out above makes it obvious that even if a legal step taken or legal procedure pursued has justification in law, the timing thereof may be oppressive and may constitute harassment if it unjustifiably neglects or ignores the legitimate interest of a fellow attorney.”

Since this decision, counsel have made it a practice to serve and file a Notice of Unavailability to put opposing counsel on notice not to schedule events in the case during a particular time period.

Last week, however, the court of appeal made clear that this notice does not bar the trial court from acting during the period of unavailability.  (Carl v. Superior Court)  As the court of appeal explained: “To the extent this practice attempts to put control of the court’s calendar in the hands of counsel–as opposed to the judiciary–it is an impermissible infringement of the court’s inherent powers.”

The appellate court expressed a measure of exhasperation with the Notice of Unavailability practice:

“We explain our reasons for summarily denying the petition in part because the common practice of filing a “notice of unavailability” in the superior court now permeates the appellate court system. We receive them on a regular basis and at all times during the appeal process: they come before the record is filed, they come while the matter is being briefed, and they have even come after a matter has been submitted for decision.”

The court concluded by explaining that the Notice of Unavailability has no place in the court of appeal, and that it is not a “fileable document” under the rules of court. 

Ghost Writing

Wednesday, October 31st, 2007

Halloween seems the appropriate time to discuss the ethics of “ghost writing” legal pleadings.  Greg May over at California Blog of Appeal has a post on the issue of ghost writing pleadings for pro se litigants.  But what about ghost writing for other attorneys and organizations?

Recently a colleague came to me seeking advice on whether it violates any rules to file a ghost-written amicus brief — that is, a brief actually written by the attorney for the party, but which would be filed in the name of an amicus organization over the signature of some other attorney.

While the California rules do not specifically address the issue, the United States Supreme Court amended their rules some time ago to require amici to disclose whether any of the parties wrote any portion of the amicus brief (Rule 37.6).

I do not think there is any concern with a party discussing legal issues with potential amici, or even recruiting amici to submit briefs to the court on particular legal issues.  In the end, however, that brief should reflect the legal and policy views of the amici. 

If we want the courts to pay attention to amicus briefs (and that is a different subject altogether), we should take care to ensure that the court has confidence that it is actually receiving third-party input rather than an extended brief of the parties to the action.

“Surprise factor” did not appear to be a good argument

Wednesday, October 3rd, 2007 is reporting on the oral argument today before the California Supreme Court in Rico v. Mitsubishi Motors.  At issue is whether an attorney can use the notes of opposing counsel after inadvertently obtaining a copy.  The attorney caught with the notes argued that the notes could be used as a surprise factor to impeach opposing expert witnesses.  According to’s Mike McKee, that argument did not go over well with the court.  McKee reports the Chief Justice’s response was “So the surprise factor is more important than the integrity of the court?”

That is not the type of question you want to hear at oral argument during the presentation of your case!

Speaking of Ethics …

Wednesday, September 26th, 2007 is reporting that disbarred criminal defense attorney Lynn Stewart will be lecturing at Hofstra Law School as part of their Legal Ethics Conference.  Stewart was disbarred after she was convicted of passing messages from her jailed client, Sheik Omar Abdel-Rahman, to an Egyptian-based terrorist group.  Stewart will be speaking on the representation of unpopular clients — something she is undoubtedly qualified to do given that the client noted above is serving a life sentence for planning terrorist attacks in New York.  It seems ironic, however, to invite an attorney who has been disbarred after criminal conviction to speak at a conference about legal ethics.

UPDATE:  More on the issue from Legal Ethics Blog

“Scout’s Honor”

Tuesday, September 25th, 2007

In an article relevant to a recent post here, the “e-version” of the ABA newsletter is arguing that relying on personal honor is a better way to achieve ethical behavior than more regulation:

Regulatory structures divert people from recognizing that they are making moral judgments and attempt to force ethical decisions through the threat of punishment, compliance programs, performance appraisals, surveillance, rewards and sanctions.  The problem is that “instead of deciding to do the right thing, people engage in a calculation,” she said.  If the costs of being caught in an infraction are not high, even with a high likelihood of detection they may take a risk and behave unethically.

I agree with the basic premise — but how do we get members of our profession to recognize the moral judgment involved in their conduct?