Legal Ethics

Building The Public Trust

Daley Plaza Talk about the incivility problem with lawyers and many point the finger at judges.  In terms of stemming bad behavior, many lawyers express shock and disappointment that some judges tolerate court interactions that involve unfounded accusations and personal aspersions–even leveled at the judges.

As confirmed in the Commission’s 2007 Survey on Professionalism, Illinois lawyers look to judges to take more of a leadership role in bringing decorum and respect back to the litigation process.

Kudos to the justices on a panel of the Illinois appellate court for calling out a lawyer who admitted he “exploded, on paper” with statements he admitted were uncivil, intemperate and incorrect.

A Civil Case Makes It To Circuit Court

Plaintiff’s counsel brought a multi-count civil case in the Circuit Court of Cook County alleging claims including malicious prosecution and false imprisonment. The circuit court granted summary judgment in favor of the defendants on two counts and barred plaintiff from seeking punitive damages on the remaining counts.  Plaintiff dismissed the remaining counts and filed an appeal of the summary judgment ruling.  The appellate court affirmed the summary judgment and declined to address the order regarding punitive damages in an order unpublished pursuant to court rule. Then things went horribly awry.

Plaintiff’s counsel filed a motion to publish the order and a petition for rehearing containing such uncivil statements as to cause the appellate court to order him to file a response and show cause why sanctions should not be imposed.  In the motion and petition the lawyer signed, he accused the court of “dishonest assumptions,” hypocrisy” and not being “serious about following the law.”  In his signed pleadings, the attorney also objected to the fact that the order affirming summary judgment was unpublished, arguing that an “opinion [sic] issued without oral argument and filed pursuant to Rule 23(b) does not suggest “openness” ; that petitions for rehearing “never get granted [and] it seems doubtful that any members of the reviewing court even read the petitions for rehearing”; that the attorney was “troubled” because the appellate court was reviewing the decision of a fellow member of the [appellate court] which, “for that reason alone suggests a possible need for recusal” and issued its order based on “a gross distortion of the record” done because “perhaps this court felt it was more important to maintain a friendly relationship with their colleague down the hallway than it was to do justice in a case that did not personally involve them.”

The attorney wisely engaged counsel and in the response explained some of his comments, acknowledged that his petition lacked civility, and apologized to the court.  However, he disagreed that his petition for rehearing brought the court into disrepute because “it is a cry from the heart of a disappointed advocate; and—considering the source—it will not destroy public confidence in the integrity of the Court.”

In a published opinion, the panel disagreed.  They explained that the documents the attorney filed in court contained disrespectful language, unjust criticism and ascribe offensive conduct to judges that tended to bring the court into disrepute and to destroy public confidence in the integrity of the judiciary.

Lest attorneys think such language is persuasive advocacy, the court stated, “Counsel’s resort to invective rather than civil, intelligible and intelligent argument in support of his position does nothing to encourage understanding of his client’s position…Appellate and trial judges deplore incivility, as should every lawyer and litigant.”

In a special concurrence, a Justice wrote that “lawyers greatly influence their clients’ impressions of the judicial process.” He added, “[b]ecause clients tend to believe what their lawyers tell them ultimately, client impressions affect public perception, and today the public generally perceives the judicial process with suspicion.”  Noting that the attorney should have realized at least that his statements would jeopardize the client’s faith in the legitimacy of the decision, the concurrence goes on to explain:

Every ad hominen smear, insult, and innuendo, every speculative accusation, every potshot leveled at members of the judiciary has the capacity of weakening confidence in the judiciary as a whole, confidence which is essential to the vitality of our legal system…[E]very personal attack on the impartiality and integrity of judges diminishes the client’s (and the public’s) already limited trust in the fairness of the legal system.  Until lawyers restrain their bashing of judges, the public’s confidence in the judicial process will remain fragile.  I urge lawyers to think twice before slamming the decision-makers instead of their decisions.

Although the justices in this case elected not to impose any sanction on the attorney, other attorneys have been disciplined for making accusations impugning the integrity of judges.

In a recent opinion, the ARDC Review Board recommended an attorney who falsely accused judges of corruption in violation of Rule 8.2 be suspended for three years and until further order of court. Similarly, a lawyer was suspended for six months and until further order of court for making false statements about an administrative law judge.  The “until further order of Court” part of the discipline means that after serving the suspension, the disciplined lawyer bears the burden of proving s/he is entitled to get their license back.

The rationale of these cases makes sense.  We lawyers are the ones who practice in the courts and understand the process.  We are more knowledgeable than members of the public about the legal and judicial processes.  Our statements about the integrity of our chosen profession and system of justice shape our client’s perceptions and, ultimately, the public’s trust.  Let’s educate the public about the Rule of Law and its essential underpinning of fairness.

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