By Gary W. Schons
You are a young prosecutor preparing for your first domestic violence trial. Fortunately it’s “only” a misdemeanor charge—domestic battery—Penal Code § 243 (c)(1)—because the injuries to your victim, a young single mother of 2 small girls who was assaulted by the children’s father, were not serious, some minor contusions to the face where the defendant struck her.
By Randall Christison
Talking to a lawyer-friend recently, one in practice for many years, I asked how he was. “Working harder; enjoying it less.” Far from flippant, he was deadly serious. Everything in his voice and body language suggested he was at the end of his rope. I asked what he does after he leaves his office each day: “home to my networked computer.” In essence he’s in the office many hours and telecommutes the rest. I asked about his résumé, down at the bottom, where we put hobbies and personal information, what did he have there? With a mirthless laugh he responded, “You mean those things I haven’t done in decades? That was a different lifetime.” Maybe more accurately, that “was when I had a life, before the law sucked it out of me.”
As most know, on November 1, 2018, 69 new California Rules of Professional Conduct replaced 46 current Rules of Professional Conduct in an effort to bring the California Rules in closer alignment with ABA Model Rules.
By George Brewster Jr.
Civility. In the practice of law, we know — we SHOULD know — what that means. What it entails, and the consequences for any uncivil behavior.
But do we behave civilly in real life?
Should we apply our rules of professional conduct to our private associations/encounters?
The San Diego County Bar Association has an Attorney Code of Conduct. Just altering the words a bit (say, duties owed to your neighbor rather than to the court, etc.), here are some rules of conduct that might be useful for our personal contacts and maybe even impersonal (i.e. social media) discussions:
Neighbors should always be courteous and respectful to each other.
Neighbors should always be candid with each other.
Neighbors should attempt to resolve, by agreement, their differences relating to neighborhood matters.
Treat neighbors who hold adverse opinions with common courtesy, good attitude, good manners, fairness and due consideration.
When asking a neighbor about an issue, proceed as though a judicial officer were present.
Neighbors should not arbitrarily or unreasonably withhold consent to a just and reasonable request for cooperation or accommodation.
Do not attribute to a neighbor a position not clearly taken by that neighbor.
Neighbors should conduct themselves so that they may conclude each matter with a handshake.
I can’t say that our national discourse is any worse than it was when the camps supporting Jefferson or Adams went after each other. But what is greatly different is that the uncivil commentary goes viral in an instant.
Lawyers are leaders in the community. We have the training to argue points without calling people names. Let us lead by example.
Just my humble opinion. Please don’t unfriend me on Facebook.
George Brewster Jr. is a retired attorney after 35 years of practice, including JAG, private practice and the last 30 with the County of San Diego, Office of County Counsel
By Edward McIntyre
Macbeth introduced Michelle Gold to Sara and Duncan.
“Michelle’s a former student. She has an issue every trial lawyer — practice long enough — will likely face.”
Macbeth gestured to his guest to start.
“I’m in the middle of a trial. Yesterday I called an expert witness. He’s a computer scientist. Also a lawyer. Testified quite well. Did excellent on cross. Jury seemed impressed. Even Judge Howell liked him.”
Duncan nodded. “Good day for the home team.”
“Until we got back to my office. He sat down. Looked real smug. Said: ‘Well, we pulled that off.’ I froze.”
Macbeth intervened. “What happened?”
“He admitted all the tests he testified he’d done — never did them. Basically made up the results. Said if he’d done the work, he’s sure he’d have gotten those conclusions. But he was too busy. So he just wrote his report with findings he manufactured.”
Sara interrupted, “I’d have strangled him.”
“I almost did. When I told him he had to correct his report and testimony, he used a few expletives. Then left for the airport. We’re dark today. I talked with our managing partner. She said talk to you. So here I am.”
Sara replied, “This happened yesterday? California’s new Rules of Professional Conduct apply.”
“Which I haven’t had time to study. I’ve been too busy preparing for this trial.”
Macbeth opened his copy. “Rule 3.3 addresses candor to the court. Let’s start there. First, the rule prohibits a lawyer making a false statement of fact or law to a tribunal, or failing to correct a previous false statement. Not surprising. But not our facts.”
“Right, I didn’t make any false statement.”
“The rule does address our situation. If a lawyer, the client or a witness the lawyer called has provided material evidence, and the lawyer learns after the fact the evidence was false, the lawyer has to take ’reasonable remedial measures.’”
“What’s that mean?”
“The only guidance the rule itself gives is, ‘if necessary, disclosure to the tribunal,’ unless 6068(e)(1) and rule 1.6 — our client confidentiality obligation — prohibits disclosure.”
Sara interjected, “Since the client didn’t testify, I don’t see how 6068(e)(1) applies.”
Macbeth nodded. “I agree. The untruthful client presents a different range of issues. Let’s stay focused on this expert. I assume his testimony is material?”
“Critical to the case. Judge Howell even allowed his report into evidence as an exhibit. Over objection.”
“Does your client know — yet?”
“Not yet. I wanted some advice.”
“Well, rule 1.4 requires that you tell your client. This is certainly a significant development relating to the representation.”
“I agree. But I want to present a plan of action. Not just engage in a, ‘Houston, we have a problem,’ conversation.”
“Wise move. Let’s talk about solutions. First, the report that’s in evidence. What do you think?”
By Lori Pope
Congratulations, you have picked a career where feeling stressed is the baseline on any given day. This stress does not just affect our physical and mental health, but our ability to perform our duty to represent our clients diligently and competently. As new attorneys, we are learning every day in a field that is constantly changing around us, and we have to constantly adapt while staying on top of our always growing caseload. Not stressful at all.
By Christine I. Pangan
As a new year of networking begins and the plethora of holiday events fade, we take a look at new contacts. How do you reconnect or stay connected? The easiest way can be social media, but in an era of impersonal quick-swiping and auto-response buttons, you could lose a potentially great connection due to lack of social media care.
By Andrew A. Servais
As most know, on November 1, 2018, 69 new California Rules of Professional Conduct replaced 46 current Rules of Professional Conduct in an effort to bring the California Rules in closer alignment with ABA Model Rules.
By Adriana Linares
It’s TechTuesday! Today we are sharing the 3rd of our new series titled “Tech Tip in a Tenth”. These are short, targeted, and practical video’s approximately 6 minutes in length, because, as Technology Committee Member, David Majchrzak said, “Who can’t spare a point one!?” First, a list of more more resources on the topic followed by today’s Tech Tip in a Tenth!
The California Rules of Professional Conduct (Rules) are intended to provide standards for the imposition of professional discipline on lawyers in California (Rule 1.0.1.) But in practice the Rules are applied in other contexts.
