ETHICS AND PROFESSIONALISM

The Critical Importance of the

Ethical Capital Litigator

Presented at

Capital Trial Advocacy

F O R   T H E   D E F E N S E

May 12-15, 2008

  The materials included in this document cover Consideration of Ethical and Professionalism Issue

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Preface

http://www.youtube.com/watch?v=-GG7sj2APpc

      Ethics 

      The American Bar Association and the bar associations for each state have attempted to define both ethical and unethical conduct for lawyers. While some of the directives are very specific, most of the directives have required years of opinions, which interpret the directives, for the directives to become meaningful and somewhat enforceable.

      Frustrated that the ethical rules governing lawyers were not filling the bill (read as: a miserable failure) the then Chief Justice of the Georgia Supreme Court spearheaded efforts to establish a separate commission on “professionalism,” which most lawyers understood to be a super-good-grade form instruction directing decent human behavior by lawyers.

      Before engaging in this ethics/professionalism communication we should distinguish between what some prefer to call “ethics” and others distinctly identify as “professionalism.”

  Professionalism[1]

      The altruistic and utopian goals of professionalism for the legal profession have not been as definitively identified as have the somewhat similar ethical goals. In fact, the connotation of professionalism within the legal profession is synonymous with the things that we expect of our opponents, as opposed to restrictions upon our conduct. Justice Stewart, in acknowledging that pornography was difficult to define when attempting to separate it from First Amendment protections, stated in his concurrence in Jacobellis v. Ohio, 878 US 184 (1964) that, “I know it when I see it.”

      “Know[ing] it when [you] see it” may be close enough for government work, but as lawyers, who use words as the primary tool of our trade and as the transmission wire we use to connect to the brains, and thereby the thought processes, of others, we must do better in attempting to define both ethical conduct and professionalism.

      The Supreme Court of Georgia Chief Justice’s Commission on Professionalism, in an attempt to explain the need for separate emphasis on professionalism, penned the following.

If successful, the professionalism effort in Georgia will inculcate a habit of talking with colleagues and engaging in dialogue that is essential to a healthy professional life.  They also will encourage the habit of reflection (or the "stop and think" rule of morality).  They will acquaint lawyers with the harsh realities of the profession, but equip them with a variety of strategies for coping with these realities.  They will also deepen one's awareness of a lawyer's particular professional situation and can provide a sense of empowerment or control over a professional career rather than a passive acceptance of an untenable situation.  They should expand the horizons of participants with respect to the richness and variety of the profession and the range of interests compatible with practice in the profession.  And lastly, they can stimulate the normal imagination about the potential of a professional life.

Chief Justice's Commission on Professionalism,  p. 5.

 For some years now, many have talked of the need to restore to American's lawyers a sense of professionalism, a sense of the highest aspirations that the legal profession in America has, at its best moments, embodied.  But sadly, talk about professionalism has tended to remain only talk.

In marked contrast, however, Georgia's Supreme Court and State Bar have in fact acted to promote professionalism.  They have devoted considerable time, energy, and funding to their shared project of raising professionalism standards.  Although much has been done -- a new CLE professionalism requirement, three professionalism convocations, and a new professionalism Commission -- much more remains to be done.  But whether we speak of a study, CLE seminars, or the Commission itself, we are always speaking of bold, imaginative projects which can serve as models for the legal profession throughout the United States, carrying with them profound implications for the life of that profession.  The Commission can accomplish its charge, and in the process, start to accomplish professionalism's overriding goal:  'knowledge and skill in the law faithfully employed in service of client and public good.'

Professionalism is about both principles and character.  All lawyers would prefer that their practices be character-building rather than corrupting.  They want to be able to achieve a good life in the practice of law.  That is much more a character issue than one of principle.  Honesty is a moral principle (and dishonesty is a CPR violation - see Standard #4), but it also is an issue of character ('I should not lie because lying makes me a liar, and being a liar is a bad way to live').

Professional behavior, however, is not simply a matter of character and principle; it is a matter of choice and decision-making.  Thus, the issue is not all or nothing.  It is not a question of being or not being ethical.  It usually is not a question of right or wrong.  It is a question of doing or not doing the ethical or professional thing.  In our high pressure world, it may not be possible to act professionally all the time.  It is, however, possible and important to act more professionally more often.

Professionalism discussions are too often framed as simple issues of rule-following or rule-violation.  But the real issue facing lawyers as professionals is developing the capacity for critical and reflective judgment.  The CLE sessions should strive to cultivate reflective judgment about the practice of law and assess how well current practices are serving the legal profession, and the system of justice in light of the traditions of our practice.

State of Georgia Chief Justice's Commission on Professionalism,  p. 8.

       The American Bar Association, at

http://www.abanet.org/cpr/professionalism/profcodes.html

 has a list of Professionalism Codes, which provide helpful research starts for professionalism issues. These websites follow.

Professionalism Codes / Reports

       Texas and most states modify the ABA Model Rules of Professional Conduct; however, understanding the model rules is a good starting point in understanding restraints placed upon the conduct of lawyers in addition to the restrains upon other persons and occupations.

      The ABA explains as follows about the model rules.

The Model Rules of Professional Conduct are intended to serve as a national framework for implementation of standards of professional conduct. Although the Commission endeavored to harmonize and accommodate the views of all the participants, no set of national standards that speaks to such a diverse constituency as the legal profession can resolve each issue to the complete satisfaction of every affected party. Undoubtedly there will be those who take issue with one or another of the Rules’ provisions. Indeed, such dissent from individual provisions is expected. And the Model Rules, like all model legislation, will be subject to modification at the level of local implementation. Viewed as a whole, however, the Model Rules represent a responsible approach to the ethical practice of law and are consistent with professional obligations imposed by other law, such as constitutional, corporate, tort, fiduciary and agency law.

 ABA Model Rules

http://www.abanet.org/cpr/mrpc/mrpc_toc.html

Model Rules of Professional Conduct

Table Of Contents

Preface

Commission on Evaluation of Professional Standards Chair's Introduction

Commission on Evaluation of the Rules of Professional Conduct ("Ethics 2000") Chair's Introduction

Preamble and Scope

Rules

Rule 1.0       Terminology

Client-Lawyer Relationship

Rule 1.1       Competence
Rule 1.2       Scope of Representation and Allocation of Authority Between Client and Lawyer
Rule 1.3       Diligence
Rule 1.4       Communications
Rule 1.5       Fees
Rule 1.6       Confidentiality of Information
Rule 1.7       Conflict of Interest: Current Clients
Rule 1.8       Conflict of Interest: Current Clients: Specific Rules
Rule 1.9       Duties to Former Clients
Rule 1.10     Imputation of Conflicts of Interest: General Rule
Rule 1.11     Special Conflicts of Interest for Former and Current Government Officers and Employees
Rule 1.12     Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
Rule 1.13     Organization as Client
Rule 1.14     Client with Diminished Capacity
Rule 1.15     Safekeeping Property
Rule 1.16     Declining or Terminating Representation
Rule 1.17     Sale of Law Practice
Rule 1.18     Duties to Prospective Client

Counselor

Rule 2.1       Advisor
Rule 2.2       (Deleted)
Rule 2.3       Evaluation for Use by Third Persons
Rule 2.4       Lawyer Serving as Third-Party Neutral

Advocate

Rule 3.1      Meritorious Claims and Contentions
Rule 3.2      Expediting Litigation
Rule 3.3      Candor toward the Tribunal
Rule 3.4      Fairness to Opposing Party and Counsel
Rule 3.5      Impartiality and Decorum of the Tribunal
Rule 3.6      Trial Publicity
Rule 3.7      Lawyer as Witness
Rule 3.8      Special Responsibilities of a Prosecutor
Rule 3.9      Advocate in Nonadjudicative Proceedings

Transactions with Persons Other Than Clients

Rule 4.1      Truthfulness in Statements to Others
Rule 4.2      Communication with Person Represented by Counsel
Rule 4.3      Dealing with Unrepresented Person
Rule 4.4      Respect for Rights of Third Persons

 Law Firms and Associations

Rule 5.1      Responsibilities of a Partner or Supervisory Lawyer
Rule 5.2      Responsibilities of a Subordinate Lawyer
Rule 5.3      Responsibilities Regarding Nonlawyer Assistant
Rule 5.4      Professional Independence of a Lawyer
Rule 5.5      Unauthorized Practice of Law; Multijurisdictional Practiceof Law
Rule 5.6      Restrictions on Rights to Practice
Rule 5.7      Responsibilities Regarding Law-related Services

Public Service

Rule 6.1      Voluntary Pro Bono Publico Service
Rule 6.2      Accepting Appointments
Rule 6.3      Membership in Legal Services Organization
Rule 6.4      Law Reform Activities Affecting Client Interests
Rule 6.5      Nonprofit and Court Annexed Limited Legal Services Programs

Information About Legal Services

Rule 7.1      Communication Concerning a Lawyer's Services
Rule 7.2      Advertising
Rule 7.3      Direct Contact with Prospective Clients
Rule 7.4      Communication of Fields of Practice and Specialization
Rule 7.5      Firm Names and Letterhead
Rule 7.6      Political Contributions to Obtain Legal Engagements or Appointments by Judges

Maintaining the Integrity of the Profession

Rule 8.1      Bar Admission and Disciplinary Matters
Rule 8.2      Judicial and Legal Officials
Rule 8.3      Reporting Professional Misconduct
Rule 8.4      Misconduct
Rule 8.5      Disciplinary Authority; Choice of Law

Subject Matter Index

IX  MAINTAINING THE INTEGRITY OF THE PROFESSION
     9.01  Severability

X  SEVERABILITY OF RULES

       The Cornell Law School Legal Information Institute, better known as LLI, has a web presence second to no other law school and few other legal sites. http://www.law.cornell.edu/  In its summary of the law of lawyering in Texas, which was prepared by Vinson & Elkins, of Houston, Texas a few, but certainly not all of the distinctions in the Texas Ethics Rules are identified as follows on the LLI web site. http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/tx-narr/query=[jump!3A!270!2E1!3A104!27]/doc/{@21}?

Texas Legal Ethics

Prepared By
Vinson & Elkins
Houston, Texas

This summary of the law of lawyering of Texas has been prepared by Vinson & Elkins, Houston, Texas. The summary is transmitted for informational purposes only and not for legal advice. Users should not act upon this information without seeking the professional advice of a lawyer in the applicable jurisdiction. An effort has been made to provide useful information, but the information is not necessarily complete, may be inaccurate, and may not reflect current legal developments. The provider does not warrant that the information is complete or accurate and disclaims all liability to any person for any loss caused by errors or omissions in the summary.

The summary is transmitted for informational purposes only and not for legal advice. Users should not act upon this information without seeking the professional advice of a lawyer in the applicable jurisdiction. An effort has been made to provide useful information, but the information is not necessarily complete, may be inaccurate, and may not reflect current legal developments. The provider does not warrant that the information is complete or accurate and disclaims all liability to any person for any loss caused by errors or omissions in the summary.

The initial installment of the Texas narrative was prepared by Vinson & Elkins L.L.P., following the structural format set by—and the invaluable support given by—Professors Cramton and Martin at Cornell Law School, the project's sponsor. The Texas project was organized by Allan Van Fleet, a partner in Vinson & Elkins' Houston office; the narrative was principally written by Edward A. Carr, also a partner in the firm's Houston office, along with the following lawyers currently or formerly associated with Vinson & Elkins who prepared one or more sections of the narrative: Walter M. ("Casey") Berger, Henry G. Binder, Bruce A. Blefeld, Lynn G. Haufrect, D'Waine M. Massey, R. Bryant Siddoway, William R. Thompson, II, John C. Wander, and Fred I. Williams, with editorial assistance by Constance Hinshaw Brown, legal assistant, Vinson & Elkins L.L.P.

Suggestions for improvements or correction are welcome. Please send them to: Allan Van Fleet or Edward A. Carr, Vinson & Elkins L.L.P., Houston, Texas, Telephone: (713) 758-2222; fax: (713) 758-2346; E-mail: Allan Van Fleet, avanfleet@velaw.com; Edward Carr, ecarr@velaw.com; Website Address: WWW.VINSON-ELKINS.COM

Copyright in this narrative is held by Vinson & Elkins. Copyright in the full American Legal Ethics Library is held by Cornell University. Questions about redistribution of the library should be directed to: Legal Information Institute, Cornell Law School, Myron Taylor Hall, Ithaca, NY 14853, E-mail: lii@lii.law.cornell.edu

The cutoff date for this edition is December 1, 1998. Consequently, the narrative does not reflect decisions, amendments or other legal developments after that date.

INTRODUCTION

• 0.1:100 Sources of Law and Guidance
• 0.2:200 Forms of Lawyer Regulation in Texas
• 0.3:300 Organization of This Library and the Model Rules
• 0.4:400 Abbreviations, References and Terminology
• 0.4:500 Additional Definitions in Texas

I. Client-lawyer relationship

• 1.1 Rule 1.1 Competence

o    1.1:100 Comparative Analysis of Texas Rule

o    1.1:200 Disciplinary Standard of Competence

o    1.1:300 Malpractice Liability

o    1.1:400 Liability to Certain Non-Clients

o    1.1:500 Defenses and Exceptions to Liability

o    1.1:600 Vicarious Liability [see 5.1:500]

• 1.2 Rule 1.2 Scope of Representation

o    1.2:100 Comparative Analysis of Texas Rule

o    1.2:200 Creating the Client-Lawyer Relationship

o    1.2:300 Authority to Make Decisions or Act for Client

o    1.2:400 Lawyer's Moral Autonomy

o    1.2:500 Limiting the Scope of Representation

o    1.2:600 Prohibited Assistance

o    1.2:700 Warning Client of Limitations on Representation

o    1.2:800 Identifying to Whom a Lawyer Owes Duties

• 1.3 Rule 1.3 Diligence

o    1.3:100 Comparative Analysis of Texas Rule

o    1.3:200 Diligence and "Zeal"

o    1.3:300 Promptness

• 1.4 Rule 1.4 Communication

o    1.4:100 Comparative Analysis of Texas Rule

o    1.4:200 Duty to Communicate with Client

o    1.4:300 Duty to Consult with Client

o    1.4:400 Duty to Inform the Client of Settlement Offers

• 1.5 Rule 1.5 Fees

o    1.5:100 Comparative Analysis of Texas Rule

o    1.5:200 A Lawyer's Claim to Compensation

o    1.5:300 Attorney-Fee Awards (Fee Shifting)

o    1.5:400 Reasonableness of a Fee Agreement

o    1.5:500 Communication Regarding Fees

o    1.5:600 Contingent Fees

o    1.5:700 Unlawful Fees

o    1.5:800 Fee Splitting (Referral Fees)

• 1.6 Rule 1.6 Confidentiality of Information

o    1.6:100 Comparative Analysis of Texas Rule

o    1.6:200 Professional Duty of Confidentiality

o    1.6:300 Exceptions to Duty of Confidentiality--In General

o    1.6:400 Attorney-Client Privilege

o    1.6:500 Waiver of Attorney-Client Privilege

o    1.6:600 Exceptions to Attorney-Client Privilege

o    1.6:700 Lawyer Work-Product Immunity

• 1.7 Rule 1.7 Conflict of Interest: General Rule

o    1.7:100 Comparative Analysis of Texas Rule

o    1.7:200 Conflicts of Interest in General

o    1.7:300 Conflict of Interest Among Current Clients (Concurrent Conflicts)

o    1.7:400 Conflict of Interest Between Current Client and Third-Party Payor

o    1.7:500 Conflict of Interest Between Current Client and Lawyer's Interest [see also 1.8:200]

• 1.8 Rule 1.8 Conflict of Interest: Prohibited Transactions

o    1.8:100 Comparative Analysis of Texas Rule

o    1.8:200 Lawyer's Personal Interest Affecting Relationship

o    1.8:300 Lawyer's Use of Client Information

o    1.8:400 Client Gifts to Lawyer

o    1.8:500 Literary or Media Rights Relating to Representation

o    1.8:600 Financing Litigation

o    1.8:700 Payment of Lawyer's Fee by Third Person

o    1.8:800 Aggregate Settlements

o    1.8:900 Agreements Involving Lawyer's Malpractice Liability

o    1.8:1000 Opposing a Lawyer Relative

o    1.8:1100 Lawyer's Proprietary Interest in Subject Matter of Representation

• 1.9 Rule 1.9 Conflict of Interest: Former Client

o    1.9:100 Comparative Analysis of Texas Rule

o    1.9:200 Representation Adverse to Interest of Former Client--In General

o    1.9:300 Client of Lawyer's Former Firm

o    1.9:400 Use or Disclosure of Former Client's Confidences

• 1.10 Rule 1.10 Imputed Disqualification: General Rule

o    1.10:100 Comparative Analysis of Texas Rule

o    1.10:200 Imputed Disqualification Among Current Affiliated Lawyers

o    1.10:300 Removing Imputation by Screening

o    1.10:400 Disqualification of Firm After Disqualified Lawyer Departs

o    1.10:500 Client Consent

• 1.11 Rule 1.11 Successive Government and Private Employment

o    1.11:100 Comparative Analysis of Texas Rule

o    1.11:200 Representation of Another Client by Former Government Lawyer

o    1.11:300 Use of Confidential Government Information

o    1.11:400 Government Lawyer Participation in Matters Related to Prior Representation

o    1.11:500 Government Lawyer Negotiating for Private Employment

• 1.12 Rule 1.12 Former Judge or Arbitrator

o    1.12:100 Comparative Analysis of Texas Rule

o    1.12:200 Former Judge or Arbitrator Representing Client in Same Matter

o    1.12:300 Negotiating for Future Employment

o    1.12:400 Screening to Prevent Imputed Disqualification

o    1.12:500 Partisan Arbitrators Selected by Parties to Dispute

• 1.13 Rule 1.13 Organization as Client

o    1.13:100 Comparative Analysis of Texas Rule

o    1.13:200 Entity as Client

o    1.13:300 Preventing Injury to an Entity Client

o    1.13:400 Fairness to Non-Client Constituents Within an Entity Client

o    1.13:500 Joint Representation of Entity and Individual Constituents

• 1.14 Rule 1.14 Client Under a Disability

o    1.14:100 Comparative Analysis of Texas Rule

o    1.14:200 Problems in Representing a Partially or Severely Disabled Client

o    1.14:300 Maintaining Client-Lawyer Relationship with Disabled Client

o    1.14:400 Appointment of Guardian or Other Protective Action

• 1.15 Rule 1.15 Safekeeping Property

o    1.15:100 Comparative Analysis of Texas Rule

o    1.15:200 Safeguarding and Safekeeping Property

o    1.15:300 Holding Money as a Fiduciary for the Benefit of Clients or Third Parties

o    1.15:400 Dispute Over Lawyer's Entitlement to Funds Held in Trust

• 1.16 Rule 1.16 Declining or Terminating Representation

o    1.16:100 Comparative Analysis of Texas Rule

o    1.16:200 Mandatory Withdrawal

o    1.16:300 Permissive Withdrawal

o    1.16:400 Order by Tribunal to Continue Representation

o    1.16:500 Mitigating Harm to Client Upon Withdrawal

o    1.16:600 Fees on Termination

• 1.17 Rule 1.17 Sale of Law Practice

o    1.17:100 Comparative Analysis of Texas Rule

o    1.17:200 Traditional Rule Against the Sale of a Law Practice

o    1.17:300 Problems in Sale of Practice

• 1.18 Rule 1.18 Duties to Prospective Clients

o    1.18:100 Comparative Analysis of Texas Rule

o    1.18:200 Definition of "Prospective Client"

o    1.18:300 Confidentiality of Communications with a Prospective Client

o    1.18:400 Conflicts of Interest Arising Out of Communications with a Prospective Clien

II. COUNSELOR

• 2.1 Rule 2.1 Advisor

o    2.1:100 Comparative Analysis of Texas Rule

o    2.1:200 Exercise of Independent Judgment

o    2.1:300 Non-Legal Factors in Giving Advice

• 2.2 Rule 2.2 Intermediary

o    2.2:100 Comparative Analysis of Texas Rule

o    2.2:200 Relationship of Intermediation to Joint Representation

o    2.2:300 Preconditions to Becoming an Intermediary

o    2.2:400 Communication During Intermediation

o    2.2:500 Consequences of a Failed Intermediation

• 2.3 Rule 2.3 Evaluation for Use by Third Persons

o    2.3:100 Comparative Analysis of Texas Rule

o    2.3:200 Undertaking an Evaluation for a Client

o    2.3:300 Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

o    2.3:400 Confidentiality of an Evaluation

• 2.4 Rule 2.4 Lawyer Serving as a Third-Party Neutral

o    2.4:100 Comparative Analysis of Texas Rule

o    2.4:200 Definition of "Third-Party Neutral"

o    2.4:300 Duty to Inform Parties of Nature of Lawyer's Role

III. ADVOCATE

• 3.1 Rule 3.1 Meritorious Claims and Contentions

o    3.1:100 Comparative Analysis of Texas Rule

o    3.1:200 Non-Meritorious Assertions in Litigation

o    3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

o    3.1:400 Civil Liability for Abusive Litigation Practice [see 1.1:520]

o    3.1:500 Complying with Law and Tribunal Rulings

• 3.2 Rule 3.2 Expediting Litigation

o    3.2:100 Comparative Analysis of Texas Rule

o    3.2:200 Dilatory Tactics

o    3.2:300 Judicial Sanctions for Dilatory Tactics

• 3.3 Rule 3.3 Candor Toward the Tribunal

o    3.3:100 Comparative Analysis of Texas Rule

o    3.3:200 False Statements to a Tribunal

o    3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud

o    3.3:400 Disclosing Adverse Legal Authority

o    3.3:500 Offering False Evidence

o    3.3:600 Remedial Measures Necessary to Correct False Evidence

o    3.3:700 Discretion to Withhold Evidence Believed to Be False

o    3.3:800 Duty of Disclosure in Ex Parte Proceedings

• 3.4 Rule 3.4 Fairness to Opposing Party and Counsel

o    3.4:100 Comparative Analysis of Texas Rule

o    3.4:200 Unlawful Destruction and Concealment of Evidence

o    3.4:300 Falsifying Evidence

o    3.4:400 Knowing Disobedience to Rules of Tribunal

o    3.4:500 Fairness in Pretrial Practice

o    3.4:600 Improper Trial Tactics

o    3.4:700 Advising Witness Not to Speak to Opposing Parties

• 3.5 Rule 3.5 Impartiality and Decorum of the Tribunal

o    3.5:100 Comparative Analysis of Texas Rule

o    3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official

o    3.5:300 Improper Ex Parte Communication

o    3.5:400 Intentional Disruption of a Tribunal

• 3.6 Rule 3.6 Trial Publicity

o    3.6:100 Comparative Analysis of Texas Rule

o    3.6:200 Improper Extrajudicial Statements

o    3.6:300 Permissible Statements

o    3.6:400 Responding to Adverse Publicity

• 3.7 Rule 3.7 Lawyer as Witness

o    3.7:100 Comparative Analysis of Texas Rule

o    3.7:200 Prohibition of Advocate as Witness

o    3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualification)

• 3.8 Rule 3.8 Special Responsibilities of a Prosecutor

o    3.8:100 Comparative Analysis of Texas Rule

o    3.8:200 The Decision to Charge

o    3.8:300 Efforts to Assure Accused's Right to Counsel

o    3.8:400 Seeking Waivers of Rights from Unrepresented Defendants

o    3.8:500 Disclosing Evidence Favorable to the Accused

o    3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials

o    3.8:700 Issuing a Subpoena to a Lawyer

o    3.8:800 Making Extrajudicial Statements

o    3.8:900 Peremptory Strikes of Jurors

• 3.9 Rule 3.9 Advocate in Nonadjudicative Proceedings

o    3.9:100 Comparative Analysis of Texas Rule

o    3.9:200 Duties of Advocate in Nonadjudicative Proceedings

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

• 4.1 Rule 4.1 Truthfulness in Statements to Others

o    4.1:100 Comparative Analysis of Texas Rule

o    4.1:200 Truthfulness in Out-of-Court Statements

o    4.1:300 Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

• 4.2 Rule 4.2 Communication with Person Represented by Counsel

o    4.2:100 Comparative Analysis of Texas Rule

o    4.2:200 Communication with a Represented Person

• 4.3 Rule 4.3 Dealing with Unrepresented Person

o    4.3:100 Comparative Analysis of Texas Rule

o    4.3:200 Dealing with Unrepresented Person

• 4.4 Rule 4.4 Respect for Rights of Third Persons

o    4.4:100 Comparative Analysis of Texas Rule

o    4.4:200 Disregard of Rights or Interests of Third Persons

V. LAW FIRMS AND ASSOCIATIONS

• 5.1 Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer

o    5.1:100 Comparative Analysis of Texas Rule

o    5.1:200 Duty of Partners to Monitor Compliance with Professional Rules

o    5.1:300 Monitoring Duty of Supervising Lawyer

o    5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer

o    5.1:500 Vicarious Liability of Partners

• 5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer

o    5.2:100 Comparative Analysis of Texas Rule

o    5.2:200 Independent Responsibility of a Subordinate Lawyer

o    5.2:300 Reliance on a Supervisor's Resolution of Arguable Ethical Issues

• 5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

o    5.3:100 Comparative Analysis of Texas Rule

o    5.3:200 Duty to Establish Safeguards

o    5.3:300 Duty to Control Nonlawyer Assistants

o    5.3:400 Responsibility for Misconduct of Nonlawyer Assistants

• 5.4 Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]

o    5.4:100 Comparative Analysis of Texas Rule

o    5.4:200 Sharing Fees with a Nonlawyer

o    5.4:300 Forming a Partnership with Nonlawyers

o    5.4:400 Third Party Interference with a Lawyer's Professional Judgment

o    5.4:500 Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations

• 5.5 Rule 5.5 Unauthorized Practice of Law

o    5.5:100 Comparative Analysis of Texas Rule

o    5.5:200 Engaging in Unauthorized Practice

o    5.5:300 Assisting in the Unauthorized Practice of Law

• 5.6 Rule 5.6 Restrictions on Right to Practice

o    5.6:100 Comparative Analysis of Texas Rule

o    5.6:200 Restrictions on Lawyers Leaving a Firm

o    5.6:300 Settlements Restricting a Lawyer's Future Practice

• 5.7 Rule 5.7 Responsibilities Regarding Law-Related Services

o    5.7:100 Comparative Analysis of Texas Rule

o    5.7:200 Applicability of Ethics Rules to Ancillary Business Activities

VI. PUBLIC SERVICE

• 6.1 Rule 6.1 Pro Bono Public Service

o    6.1:100 Comparative Analysis of Texas Rule

o    6.1:200 Lawyer's Moral Obligation to Engage in Public Interest Legal Service

• 6.2 Rule 6.2 Accepting Appointments

o    6.2:100 Comparative Analysis of Texas Rule

o    6.2:200 Duty to Accept Court Appointments Except for Good Cause

• 6.3 Rule 6.3 Membership in Legal Services Organization

o    6.3:100 Comparative Analysis of Texas Rule

o    6.3:200 Conflicts of Interest of Lawyers Participating in a Legal Services Organization

• 6.4 Rule 6.4 Law Reform Activities Affecting Client Interests

o    6.4:100 Comparative Analysis of Texas Rule

o    6.4:200 Conflicts of Interest of Lawyers Participating in Law Reform Organizations

• 6.5 Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

o    6.5:100 Comparative Analysis of Texas Rule

o    6.5:200 Scope of Rule

o    6.5:300 Special Conflict of Interest Rule

VII. INFORMATION ABOUT LEGAL SERVICES

• 7.1 Rule 7.1 Communications Concerning a Lawyer's Services

o    7.1:100 Comparative Analysis of Texas Rule

o    7.1:200 Lawyer Advertising--In General

• 7.2 Rule 7.2 Advertising

o    7.2:100 Comparative Analysis of Texas Rule

o    7.2:200 Permissible Forms of Lawyer Advertising

o    7.2:300 Retaining Copy of Advertising Material

o    7.2:400 Paying to Have Services Recommended

o    7.2:500 Identification of a Responsible Lawyer

• 7.3 Rule 7.3 Direct Contact with Prospective Client

o    7.3:100 Comparative Analysis of Texas Rule

o    7.3:200 Prohibition of For-Profit In-Person Solicitation

o    7.3:300 Regulation of Written and Recorded Solicitation

o    7.3:400 Disclaimers for Written and Recorded Solicitation

o    7.3:500 Solicitation by Prepaid and Group Legal Services Plans

• 7.4 Rule 7.4 Communication of Fields of Practice

o    7.4:100 Comparative Analysis of Texas Rule

o    7.4:200 Regulation of Claims of Certification and Specialization

• 7.5 Rule 7.5 Firm Names and Letterheads

o    7.5:100 Comparative Analysis of Texas Rule

o    7.5:200 Firm Names and Trade Names

o    7.5:300 Law Firms with Offices in More Than One Jurisdiction

o    7.5:400 Use of the Name of a Public Official

o    7.5:500 Misleading Designation as Partnership, etc.

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

• 8.1 Rule 8.1 Bar Admission and Disciplinary Matters

o    8.1:100 Comparative Analysis of Texas Rule

o    8.1:200 Bar Admission

o    8.1:300 False Statements of Material Fact in Connection with Admission or Discipline

o    8.1:400 Duty to Volunteer Information to Correct a Misapprehension

o    8.1:500 Application of Rule 8.1 to Reinstatement Proceedings

• 8.2 Rule 8.2 Judicial and Legal Officials

o    8.2:100 Comparative Analysis of Texas Rule

o    8.2:200 False Statements About Judges or Other Legal Officials

o    8.2:300 Lawyer Candidates for Judicial Office

• 8.3 Rule 8.3 Reporting Professional Misconduct

o    8.3:100 Comparative Analysis of Texas Rule

o    8.3:200 Mandatory Duty to Report Serious Misconduct

o    8.3:300 Reporting the Serious Misconduct of a Judge

o    8.3:400 Exception Protecting Confidential Information

• 8.4 Rule 8.4 Misconduct

o    8.4:100 Comparative Analysis of Texas Rule

o    8.4:200 Violation of a Rule of Professional Conduct

o    8.4:300 Commission of a Crime

o    8.4:400 Dishonesty, Fraud, Deceit and Misrepresentation

o    8.4:500 Conduct Prejudicial to the Administration of Justice

o    8.4:600 Implying Ability to Influence Public Officials

o    8.4:700 Assisting Judge or Official in Violation of Duty

o    8.4:800 Discrimination in the Practice of Law

o    8.4:900 Threatening Prosecution

• 8.5 Rule 8.5 Disciplinary Authority; Choice of Law

o    8.5:100 Comparative Analysis of Texas Rule

o    8.5:200 Disciplinary Authority

o    8.5:300 Choice of Law

       Ethical Conduct and Professional cannot be addressed without including information about sexual, racial, ethnic, national origin, religious and the many other forms of discrimination that deprive our system of “Equal Justice to All.

       The following document covers just one small aspect of discrimination and demeaning conduct that infects our system of justice, sexism.

 GUIDELINES FOR PRACTICING GENDER NEUTRAL COURTROOM PROCEDURES

Approved by the

The Texas Supreme Court

By: The Gender Bias Reform Implementation Committee

Based on findings and recommendations of

The Supreme Court of Texas

Gender Bias Task Force

PUBLISHED April, 2004

DEDICATION

This guidebook is gratefully dedicated to the Supreme Court of Texas and the Texas Court of Criminal Appeals, whose recognition of the need for guidelines to provide for equal access to the

halls of justice without regard to gender or race, is appreciated by the men and women of the State of Texas.

 SPECIAL THANKS

To the Texas Bar Foundation for their support and participation in the funding of this educational project.

INTRODUCTION

The Gender Bias Task Force was commissioned by the Texas Supreme Court to identify bias and implement strategies to bring about gender fairness in the Texas Judicial System and practice of law.

The Gender Bias Task Force, created by the Supreme Court of Texas, discovered after a two-and-one-half year study, that many Texas women and men experience discriminatory or inequitable treatment in the Texas judicial system simply because of their sex.

Much of the gender bias documented by the Task Force occurs in the courtroom – in the exchanges among judges, attorneys, litigants,       court personnel, and witnesses. 

For example, the Task Force made the following findings:

✓Nine out of ten female law professionals responding to a State Bar survey reported being the target of at least one incident of gender discrimination in the courtroom during the preceding three years.

✓Women litigants often experience hostile, demeaning, or condescending treatment from attorneys and sometimes from judges.

✓Judges rarely reprimand counsel or court personnel whose behavior or comments exhibit gender bias.

✓Gender stereotypes and gender-biased treatment toward litigants and counsel of both sexes have a negative impact on the litigation process and may affect case outcome.

✓Discriminatory treatment of attorneys affects their credibility and may have serious consequences on their ability to advocate effectively for clients. 

RECOGNIZING GENDER BIAS

 One of the most striking findings of the Task Force was the significant gap between the perceptions of men and women concerning the extent of gender fairness. Although a majority of male attorneys and judges surveyed by the Task Force believed that bias against women does exist, most felt that it exists in only a few areas and involves a few individuals. In contrast, more than half of the women respondents indicated that bias against female litigants not only exists, but that it is widespread. Most women also said gender bias is subtle and hard to detect rather than readily apparent.

Gender bias can be subtle and unintentional. This guide is designed to help judges, attorneys and court personnel identify gender fairness in our courts. Gender-neutral courts will promote “equal justice under law.” Review the list on the next page and see if you find yourself saying,

 “THAT’S NOT GENDER BIAS, IS IT?”

Do You See Yourself Here?

 Have you ever:

✓Told an off-color joke in chambers?

✓Remarked to a female attorney that her family commitments might interfere with her responsibilities to the court or her client?

✓Hesitated to award a father primary child custody or given a smaller support order if the paying spouse is the mother primarily because of her gender?

✓Called a female lawyer “dear,” “honey,” “sweetie,” “sweetheart” or “darling”? How about “young lady,” “missy,” “little lady,” “little miss”, “lady lawyer” or “Miss America”?

✓Expressed surprise that a woman would appear in court

late in her pregnancy?

✓Called a woman by her first name but addressed a man as

“Mister so-and-so”?

✓Referred to a female criminal defendant as a “bimbo”?

✓Treated a female criminal defendant with more leniency just because she is a female?

✓Made remarks about a woman’s physical appearance, attractiveness, or unattractiveness, either to her face or behind her back? Allowed your court staff to do this? …Does “nice legs” ring a bell?

 You’re saying “Not Me!” Right?

Well, Consider This:

 The facade of the United States Supreme Court Building concisely expresses the mission of the nation’s courts: 

Equal Justice Under Law.

 This abiding rule is graphically portrayed by the figure of Themis – blind justice holding scales in balance.

 The goals of the Task Force and the Gender Bias Reform Implementation Committee include identifying gender biased practices and helping the legal profession move towards a universal practice of gender fairness. The first step is to identify all the practices that fit the definitions of gender bias.

Gender bias may be defined as the predisposition or tendency to think about and behave toward people mainly on the basis of their sex.Gender bias may include the following:

➊ STEREOTYPED THINKING THAT LEADS TO DISPARATE TREATMENT IN THE COURTROOM

 • Fathers denied custody because judges do not believe men can or should be primary caretakers

• Mothers denied custody because they work outside the Home

 • Male criminal defendants given stiffer sentences than female criminal defendants for the same crime 

• Women attorneys considered “too tough” for behavior praised as zealous advocacy when exhibited by male attorneys

• Women seated at counsel table presumed to be legal assistants or secretaries rather than attorneys

• Female court personnel assumed to have no authority or ability to handle matters presented to them

 ❷ DEVALUATION OF WOMEN AND WOMEN’S WORK

 • Undervaluing the work women perform as homemakers and caregivers for children and the elderly in civil damage suits and in property division upon divorce

 • Credibility of women litigants, witnesses and lawyers discounted solely on the basis of their sex 

• Tolerating terms of endearment or less than respectful forms of address toward female counsel, witnesses or court personnel which convey that women attorneys, litigants, witnesses and court personnel have a lower status than their male counterparts

❸ PLACING A BURDEN ON ONE SEX THAT IS NOT

PLACED ON THE OTHER

 • Holding women attorneys to higher standards than their male counterparts; assuming competence on the part of male attorneys but expecting female attorneys to prove their ability

 Expecting more credentials or greater qualifications before qualifying women as expert witnesses than those expected for men in the same profession

 HOW GENDER BIAS IS MANIFESTED IN THE COURTROOM

 AS TO LITIGANTS: The Task Force found that women litigants often experience hostile, demeaning or condescending treatment in the courtroom, and that male litigants are negatively affected by gender stereotypes both in the family law system and in the criminal justice system.

 • Calling female litigants by first names while addressing male litigants by title (Mr., Dr., Professor)

 • Making condescending references to women’s roles, such as referring to the litigant as “just a housewife”

• Expressing surprise upon hearing that a father is seeking custody of his child

In a gender neutral court, the claims of men and women litigants are considered equally legitimate and are treated accordingly. A gender neutral court requires that courts strive to free the litigation process from predetermined assumptions regarding the relative roles and attributes of men and women.

 AS TO DOMESTIC VIOLENCE AND SEXUAL ASSAULT VICTIMS: The Task Force learned that domestic violence and sexual assault cases present special gender fairness problems.

 Gender biased behavior may include:

 • Viewing domestic violence and sexual assault as less serious than other criminal acts

 • Minimizing victim’s experiences, such as assuming that acquaintance rape is less traumatic than “stranger rape”

 • Questioning the credibility of female crime victims in ways that the credibility of male crime victims is not questioned 

• Blaming victims for causing the abuse or assault

 AS TO COURT PERSONNEL: Gender bias in the treatment of court personnel may include: 

• Assuming that a female clerk is subordinate to a male clerk

• Addressing female court personnel by terms of endearment or diminutives

 In a gender neutral court, court personnel are viewed as providing valuable service to everyone using the court and are accorded respect and courtesy. It is unfair to assume that employees’ authority or ability to assist is related to their gender.

 AS TO LAWYERS: The Task Force heard of numerous incidents in which women attorneys were treated with rudeness, condescension or contempt. Treating male and female attorneys differently solely because of gender is not only unfair to them – it can undermine their credibility and may have serious consequences on their ability to be effective advocates for clients. This disparate treatment undermines the justice system’s goal of providing equal justice for all. Treatment that can sabotage the goal of fairness includes:

 • Referring to female attorneys by diminutives (honey, sweetie, little lady, etc.) or first names while addressing male attorneys as Mr. (Last Name)

 • Remarking on the attractiveness or attire of female attorneys

 • Looking to male attorneys to provide information to the

court and ignoring female attorneys

 • Failing to recognize and respond to women lawyers to the same extent and in the same manner that male lawyers are responded to and recognized

 In a gender neutral court, the judge does not engage in this gender-biased behavior or tolerate it from attorneys or court personnel. Good attorneys, regardless of gender, are seen as competent advocates. Women attorneys in a gender-neutral court are not expected to be more passive in their advocacy or more tolerant of interruption or reprimands than men.

 AS TO WITNESSES: The Task Force found that male and female witnesses often experienced disparate treatment. Imagine being summoned into court for the sole reason that you have information important to a case, and then being treated in a hostile, demeaning, or condescending manner! Such behavior may include:

 • Treating women in such a way as to indicate that their opinions or statements are unimportant, irrational or unduly emotional

• Referring to female witnesses by first names, terms of endearment, or diminutives

• Addressing female expert witnesses as Miss/Mrs./Ms. rather than by an earned title, such as Doctor/Professor that denotes an area of expertise

 In a gender neutral court, credibility of witnesses is judged by the same standard for women and for men. To promote fairness in the courtroom the court, court personnel and attorneys should avoid treating witnesses in a way that leads the jury to factor gender into their evaluation of witness credibility. Treatment of female or male witnesses that suggests that they are not worthy of belief solely because of their gender thwarts the goal of gender fairness. In a gender-neutral court, expert witnesses are judged on the basis of their qualifications and not their gender. Sometimes attorneys will explain that referring to witnesses in ways that undermine their credibility is nothing more than a trial tactic. However, trial tactics based on or exploiting gender bias are not tolerated in a gender neutral court.

 AS TO PEOPLE FROM DIVERSE COMMUNITIES: A court sensitive to “equal justice under law” treats everyone entering the court with dignity and respect, regardless of gender, racial or ethnic background, disability, sexual orientation, religion, age, ability to speak English or any other distinguishing characteristics. 

A gender-neutral court is careful not to make assumptions about people’s roles or identities in the courts based on any of these factors.

 SOME SUGGESTED WAYS TO AVOID GENDER BIAS

➊ Address all persons in the courtroom by last names and

appropriate title.

 ◆ Counsel or attorney

◆ Mr./Ms. (unless Miss or Mrs. are requested)

◆ Dr. or Officer or Representative/Senator

◆ Jurors or Juror

 ◆ Presiding Juror

 To avoid differential treatment or even the appearance of differential treatment, address both women and men in the same formal or professional manner. Always use a consistent form of address such as “Attorney X” and “Attorney Y.” In private conversation or social settings, first names and other informal address may convey a friendly or casual attitude; in the public settings where courthouse business takes place they suggest a lack of respect.

❷ Address mixed groups of women and men with gender neutral or gender inclusive terms.

◆ Colleagues

◆ Members of the jury

◆ Members of the bar

◆ Counselors

◆ Ladies and gentlemen

 Conversation that creates an exclusively masculine or feminine atmosphere should be avoided so that everyone is included in the justice system.

 ❸ Use gender neutral language in all court correspondence

and jury instructions.

 Use “Dear Counsel” when not using the individual’s name and where appropriate include reference to he/she, him/her.

The plural (witnesses/they) is helpful.

 ❹ Avoid terms of endearment and diminutive terms in courthouse interaction, as such terms imply a lower status.

 ◆ honey, sweetie, dear, doll, babe

◆ little lady, pretty girl, young lady, lady lawyer (in reference to adult women)

◆ boy, son (in reference to adult men)

 These terms can demean or offend even if the speaker does not intend to do so. Courtroom protocol requires the highest degree of professionalism and courtesy.

 ❺ Avoid comments on or references to physical appearance,

such as:

 ◆ body parts

◆ pregnancy

◆ dress style

 ◆ hair style

 Comments on physical appearance can be seen as demeaning and put people at a disadvantage by drawing attention to their gender rather than the reason for their presence in the court. Comments appropriate in a social setting often are inappropriate in a professional setting. For example, complimenting a female attorney on her appearance or drawing attention to her pregnancy while she is conducting business may undermine how others perceive her. Avoid using opposing counsel’s gender as a litigation tactic either inside or outside the courtroom.

 ❻ Jokes and remarks with sexual content, or jokes and remarks that play on sexual stereotypes, are out of place in the courthouse setting.

 Everyone in the courthouse must protect the dignity and integrity of the court and show respect for every other person. Sexual, racial, and ethnic jokes and remarks are improper in the courthouse and in the administration of justice.

 ❼ Avoid comments, gestures and touching that can offend others or make them uncomfortable.

Because touching people may offend them, it should be avoided. They may not feel free to interrupt or complain,  especially when the person doing the touching is in a position of authority, such as a supervisor touching an employee or a court employee touching a litigant, witness, juror, or attorney.

Sexually suggestive comments, gestures, and touching, as well as sexual advances, undermine the dignity of the court. Such acts may constitute sexual harassment which is prohibited by law and subject to sanction pursuant to court policy. Harassment to provoke an emotional response is inappropriate under all circumstances. 

❽ Treat women and men with dignity, respect and attentiveness, mindful of their professional accomplishments.

 The Task Force found that women lawyers are much more likely than men to be asked if they are attorneys. Do not inquire of a woman regarding her professional status when you would not ask the same question of a man. To avoid this, use a question that applies to everyone, such as, “Will all attorneys please identify themselves to the court?”

 RESPONSIBILITY FOR ELIMINATING GENDER BIAS IN THE COURTROOM

 It is up to judges, attorneys, and court personnel to work together to eliminate gender bias and to promote fairness.

 AS JUDGES: Judges play a key role in eliminating bias from the judicial system. A judge can establish an environment that makes it clear that men and women are and will be considered equals in the eyes of the law. Judges are obligated under the Texas Code of Judicial Conduct to require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status against parties, witnesses, counsel, or others. This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding (see Canon 3B(7)). Judges are also obligated under the Code to require staff, court officials and others subject to the judge’s direction and control to observe the standards that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties (see Canon 3C(2)). A judge’s treatment of people in the court, the decisions the judge makes, and intervention in inappropriate conduct of attorneys and court personnel are of utmost importance. 

AS ATTORNEYS: As officers of the court, attorneys have an important role in maintaining the dignity and integrity of the court. An attorney’s treatment of litigants, witnesses, court personnel, and other attorneys has a significant impact on the judicial system. The Texas Disciplinary Rules of Professional Conduct specifically address “bias or prejudice based on race, color, national origin, religion, disability, age, sex or sexual orientation” in connection with an adjudicatory proceeding (see Rule 5.08). In addition, the Texas Lawyers Creed calls on all attorneys to “treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility,” and not to manifest by words or conduct bias or prejudice.

 AS COURT PERSONNEL: Members of the public often have their first and sometimes their only experience with the court system through a court employee. By conveying respect and providing assistance to all, court personnel play an important role in eliminating bias in the administration of justice.

 This Guide has been prepared based on some of the findings and recommendations of the Gender Fairness Task Force published in its Final Report in February 1994. The purpose is to provide guidance for the bench, bar and court personnel. This Guide does not set a legal standard of care or conduct, nor does it supplant the Texas Code of Judicial Conduct or the Texas Rules of Disciplinary Procedure. It is not a set of rules that lawyers may use and abuse to incite ancillary litigation or arguments over whether it has been observed.

 The Supreme Court of Texas and the Court of Criminal Appeals hereby approve the Guide as part of an educational program to promote fairness in the administration of justice in Texas.

 Copies of the handbook Educational Guide for Exercising and Promoting Gender Fairness are available through the

Texas Center for Legal Ethics and Professionalism

P.O. Box 12487

Austin, TX 78711-2487

(512) 463-1463, ext. 2161

Or find the handbook on the Web:

Office of the Court Administration

www.courts.state.tx.us

State Bar of Texas

www.texasbar.com

Texas Center for the Judiciary

www.yourhonor.com

Texas Center for Legal Ethics and Professionalism

www.txethics.org

Making it Happen

      The focus of this presentation on Ethics, Professionalism and an essential aspect of each demeaning conduct to participants in our justice system, is to demonstrate a way to encourage and enforce ethical conduct and professionalism by your adversaries, including judges.

      This presentation will be a hands-on anatomy of a case study, with instructive comments.  The case study presents both ethical and professionalism problems that will be used to invoke participation and discussion. The dialogue will also include, as an integral part of the presentation, events and cases in which the participants have been involved.

      Generally, if not always, the ethics and professionalism segments of the continuing education programs are fulfilled by presenters warning the attendees of conduct that can subject them to disciplinary action or other detriment.

      This presentation will be different.  This presentation is to sharpen our skills in insuring that the courts and bar associations equally apply ethical and professionalism standards to our adversaries and members of the judiciary.  The focus here will be how we can use the ethical obligations of lawyers as an offensive weapon, i.e., enforcement of the ethical requirements and professionalism goals of the bar associations.  Our adversaries, and sometimes this list includes judges, are often allowed to engage in unchecked, unethical and unprofessional conduct.

      As a backdrop, let’s first examine a few decisions to both obtain an appropriate format to analyze our subject case, which is identified in the example pleading. 

QUESTION

Is it permissible for a prosecutor in a criminal case to call another prosecutor out of the same office to testify as a witness?

OPINION

DR 5-102(A) provides that after an attorney undertakes employment in a case, and it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial, and his firm, if any, shall not continue representation in the trial, except in certain instances set forth in DR 5-101(B). These exceptions are: 1. If the testimony will relate solely to an uncontested matter. 2. If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. 3. If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. 4. As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

We hold that DR 5-102 applies to the district attorney's office and to all of those who practice in the same office. The rule would not apply to district attorneys and assistants practicing in another district, in another office. Although each assistant district attorney is not formally a law partner, the same principle would apply because their interest would be in common, just as would be the interest of law partners. Further, under DR 9-101, a lawyer should avoid even the appearance of impropriety. Insofar as Opinion 226 (March, 1959) is in conflict with this opinion, Opinion 226 is hereby overruled.

OPINION 430

February 1986

Tex. Comm. On Professional Ethics, Op. 430, V. 49 Tex. B.J. 647 (1986)

QUESTIONS PRESENTED

May an attorney employee of a district attorney's office represent without additional compensation another attorney in the office who is being sued in federal court for alleged acts as an attorney in such office if the attorney defendant ought to be called as a witness? Is such representation permissible if the attorney conducting the representation or another attorney in the office ought to be called as a witness in the case?

DISCUSSION

Disciplinary Rule ("DR") 5-101(B) of the Texas Code of Professional Responsibility provides that a lawyer should not, with certain exceptions, accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that he or a lawyer in his firm ought to be called as a witness in the case. The exceptions set forth in DR 5-101(B) are as follows: "(1) If the testimony will relate solely to an uncontested matter. "(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. "(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. "(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."

This Committee has held that DR 5-102(A) (which applies when a lawyer learns or it is obvious after undertaking employment that he or a lawyer in his firm might be a witness on behalf of his client) is applicable to attorneys in a particular district attorney's office as if the attorneys were members of the same law firm. Texas Professional Ethics Committee Opinion 399.

This Committee has also held, in Texas Professional Ethics Committee Opinion 368, that in the case of attorneys in a law firm DR 5-101(B) does not prohibit an attorney's undertaking to represent in a lawsuit a partner or associate in the attorney's firm if the partner or associate will be a party witness in the suit. Opinion 368 does not, however, permit a lawyer to represent another lawyer in his firm in a lawsuit where a firm lawyer other than the party is expected to be a witness.

With respect to the questions presented, the provisions of the Texas Code of Professional Responsibility and the previous opinions of this Committee discussed above would not prohibit an attorney in a district attorney's office from representing another attorney in that office who is a defendant in a federal court suit relating to the defendant's actions in the district attorney's office if no lawyer in the district attorney's office other than the attorney defendant is expected to be called as a witness. However, if the representing attorney knows or it is obvious that an attorney from the district attorney's office other than the defendant attorney ought to be called as a witness, the analysis of Opinion 399 discussed above would apply and no attorney from the district attorney's office (other than the defendant attorney) could undertake to represent the defendant attorney unless one of the exceptions set forth in DR 5-101(B) was applicable.

In the event that, after an attorney in the district attorney's office has undertaken representation of the defendant attorney, the attorney learns or it is obvious that he or another attorney in the district attorney's office (other than the defendant attorney) ought to be called as a witness on behalf of the defendant attorney, DR 5-102(A) would require the attorney to withdraw from the representation unless one of the exceptions of DR 5-101(B) quoted above applies. If, after representation is commenced, the representing attorney learns or it is obvious that an attorney in the district attorney's office other than the defendant attorney may be called as a witness other than for the defendant attorney, withdrawal would not be required unless it becomes apparent that the attorney's testimony is or may be prejudicial to the interest of the defendant attorney. DR 5-102(B).

CONCLUSION

Under the Texas Code of Professional Responsibility one attorney in a district attorney's office may undertake representation of another attorney in the office who is a defendant in a suit in federal court relating to matters arising in the district attorney's office unless the representing attorney knows or it is obvious that he or another attorney in the office other than the defendant attorney ought to be called as a witness in the suit. If the attorney who is considering representation knows or it is obvious that an attorney other than the defendant attorney ought to be called as a witness, the Texas Code of Professional Responsibility would not permit any attorney from the district attorney's office (other than the defendant attorney) to represent the defendant attorney unless one of the exceptions set forth in DR 5-101(B) was applicable. If the question of testimony by an attorney from the district attorney's office arises only after an attorney from such an office has undertaken the representation, the standards of DR 5-102(A) and (B) would determine whether the attorney's withdrawal would be required. No opinion is expressed by the Committee as to whether any restrictions apply under applicable federal or state law with respect to the representation that is the subject of this opinion. (9-0)

OPINION 365
P>May 1973

THREAT OF ADDITIONAL PROSECUTION TO ABATE APPEAL FROM JUDGMENT OF CONVICTION

Prosecuting attorney should not do any act or take any position calculated to deny criminal defendant's right to a full and fair trial.

DR 1-102 and DR 7-103

QUESTION

May a prosecuting attorney use the threat of prosecuting additional pending complaints against a defendant who has been convicted in a trial court so as to discourage an appeal from such conviction?

DR 1-102 (A) (5) states as follows: "A lawyer shall not engage in conduct that is prejudicial to the administration of justice."

DR 7-103 (A) states: "A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause."

DR 7-103 (B) "A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

The above two quoted disciplinary rules seem to be effectively on point. DR 7-105 seems to state the matter quite clearly except that it is not directed toward a criminal matter. Such rule states "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." It can be readily seen, however, that the intent of the disciplinary rules are calculated to control the conduct of lawyers in such a fashion that no person involved in litigation, criminal or civil shall be denied a full and fair trial and due process of the law. The "COMMENT" pertaining to DR 7-105 describes a threat of criminal prosecution by an attorney to be "a species of duress and actionable as an unfair collection tactic". It is certainly arguable that if such a threat of criminal prosecution can be described as duress in the field of commercial law, it would surely be nothing less that that in the field of criminal law; but would be even more reprehensible.

Ethical Comment (EC) 7-13 places a rather lofty responsibility upon a public prosecutor. EC 7-13 states in part as follows: "The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict." It further places a responsibility upon the prosecutor to use restraint in the discretionary exercise of governmental powers. It recognizes that the prosecutor makes decisions affecting the public interest, and that these decisions should be fair to all during a trial. The Comment further recognizes that an accused is given the benefit of all reasonable doubts, and takes the position that the prosecutor should make timely disclosure to the defense of all evidence that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.

EC 7-14 when speaking about a government lawyer in a civil action or an administrative proceeding, imposes "the responsibility to seek justice and to develop a full and fair record, and the further responsibility not to use his position or the economic power of the government to harass parties or to bring about unjust settlements or results."

From the above two referenced Comments, it can be seen that the government attorney has a high responsibility to see that an accused or convicted person has his full measure of defense afforded to him. Such full measure would surely include the right to an appeal.

EC 7-21 recognizes that "the criminal process is designed for the protection of society as a whole." And then defines the threatened use of criminal process as "a subversion of that process". And then the Comment states "the person against whom the criminal process is so misused may be deterred from asserting his legal rights - - ". Then concludes "as in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system."

It must be kept in mind, however, that every advice or disclosure by a prosecuting attorney to a defense counsel as to the existence of other pending complaints in a situation of this kind, should not be necessarily interpreted as a "threat". The government attorney has a right to exercise discretion as to the selection of cases to prosecute (EC 7-13). It may be that the defense counsel will be placed in a position to make a determination under all of the known and existing facts as to what is best for his client. DR 7-101 (B) (1) states "In his representation of a client, a lawyer may, where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client." It seems to the Committee that in certain situations such as can exist in these circumstances, a lawyer may determine that it is in his client's best interest not to appeal from the adverse decision. In making such statement, however, it should not be interpreted that this opinion again opens the door to the use of threat of additional prosecution to prevent an appeal.

Such a statement should be considered in light of ABA Informal Opinion No. 955 -- "Obligation to Take Criminal Appeal" wherein the case of Anders vs. California 35 U.S. Law Week 4385,

Opinion by Justice Clark, indicates that there is not only an obligation to the client, but also to the court in such situations. And further, in ABA Informal Opinion 955, former ABA Cannon 30 (former Texas Cannon 28 now in substance DR 7-102 (A)) is quoted "The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. His appearance in court should be deemed equivalent to an assertion on his honor. That in his opinion his client's case is one proper for judicial determination."

It is the opinion of the Committee that the above mentioned disciplinary rules and comments clearly indicate that a prosecuting attorney should not do any act or take any position calculated to deny any criminal defendant his full rights of due process in defending himself against criminal charges.

The following pleading forms the subject case for discussion.

IN THE CIRCUIT COURT

OF THE ______________ JUDICIAL CIRCUIT

__________ COUNTY, ILLINOIS

      [Defense Counsel] seeks relief as requested in this motion.  The type of relief needed by [Defense Counsel] from the Court will depend on the degree of voluntary compliance by the prosecution and Judge [Circuit Judge] with the request made here.  This motion will not be noticed for hearing until informal attempts fail to satisfy the request made here.

      Momentarily, the conduct of [Defense Counsel] appears to be the problem here; in reality, the issues are more complex.

Preface

      [Defense Counsel], on July 26, 1994, filed a motion seeking a wide range of relief.  The relief requested in that motion ranges from an annulment of [Defense Counsel]'s contempt conviction to a hearing with an opportunity to present evidence. The Court, pursuant to an agreement of the parties, has entered an order granting leave for the Prosecution to submit a response to that motion by August 31.[2]  This response by the State should be a memorandum of law and a statement of its position on the factual issues.

      The purpose of this omnibus motion is to first focus the State on the issues as perceived by the attorneys for [Defense Counsel] and then determine the extent of all relevant disputed factual and legal issues.  The attorneys for [Defense Counsel] also bring this motion to obtain discretionary, together with statutorily, and constitutionally mandated discovery. These systemic changes are sought to balance fairness.

      [Defense Counsel] has sought no civil, administrative, retaliatory or other type of action against any of the parties involved in this criminal contempt. No actions, other than in this Court, will be initiated until there is an unfavorable disposition here. Furthermore, no one on behalf of [Defendant] has brought either an administrative or regulatory complaint, nor has anyone attempted to obtain either monetary damages or injunctive relief under 42 USC '1983  for [Defendant].

      [Defense Counsel] assures the prosecution, if the State now moves, and the Court agrees, to annul this contempt charge, [Defense Counsel] will abandon any potential ancillary actions.  This action does not have to be litigated by the prosecution to protect anyone from sanctions.

I.  Factual Analysis

      These proceedings can most efficiently be brought to a disposition consistent with the Constitution and applicable laws if the areas of factual dispute between the parties are clarified.  The following facts are either known or strongly suspected to be true. For each enumerated statement of fact, the State should either admit or deny that enumerated fact and, if it is denied, the State should specify in what manner the enumerated fact is incorrect. Thus, the areas of agreement and disagreement on factual issues can be unconfusingly narrowed.

      1.  Judge [Circuit Judge] presided at the proceeding at which [Defendant], represented by [Defense Counsel], sought to withdraw his guilty plea.  Judge [Circuit Judge] also accepted the guilty plea and later sentenced [Defendant].

      2.  Judge [Circuit Judge], earlier in the proceedings against [Defendant], ordered a mental and psychological evaluation.  Judge [Circuit Judge] read this evaluation of [Defendant] at some time before the acceptance of his guilty plea.

      3.  [Assistant State's Attorney], present at the proceeding to withdraw the guilty plea of [Defendant] and was the same prosecutor who represented the State at the guilty plea proceedings and sentencing of [Defendant].

      4. [Assistant State's Attorney] read the mental and psychological evaluation of [Defendant] at some time before the Court accepted his guilty plea.

      5.  Both Judge [Circuit Judge] and [Assistant State's Attorney] knew, at the time of the hearing on the motion to withdraw the guilty plea, that the admonishments given [Defendant] at his guilty plea proceeding were no different than [Defense Counsel] had alleged and argued at the hearing on the motion to withdraw the guilty plea.

      6.  At the hearing on the motion to withdraw the guilty plea neither Judge [Circuit Judge] nor [Assistant State's Attorney] took issue with [Defense Counsel] about his representations of the type of admonishments Judge [Circuit Judge] had given [Defendant].

      7.  [Defense Counsel] alleged and argued correctly the type and content of the admonishments given [Defendant].

      8.  [Defense Counsel], in addition to being correct, had a good faith basis for believing as true the facts that he alleged and argued at the hearing on the motion to withdraw the guilty plea.

      9.  The transcripts of the proceedings at the guilty plea and later at the sentencing of [Defendant] support the correctness of [Defense Counsel]'s allegations and argument that [Defendant]'s admonishments were not given with any special care different from those given by Judge [Circuit Judge] at a guilty plea proceeding for a person of normal intelligence and normal psychological functioning.

      10.  Never after the initial hearing on the motion to withdraw the guilty plea and before the proceeding at which [Defense Counsel] was held in contempt did either the judge, prosecutor or anyone acting for them, contact or notify [Defense Counsel] that there was any problem with his acts or performance at the hearing to withdraw [Defendant]'s guilty plea.

      11.  Judge [Circuit Judge] instigated an inquisition in this matter focused to punish [Defense Counsel]. There was no notice to [Defense Counsel] of this inquisition; however, counsel for the People did have knowledge of the inquisition and the later hearing at which time the testimony of  [___ ______], the court reporter, was taken.  Counsel for the People made no attempt to inform [Defense Counsel] of the inquisition and the hearing at which the sworn testimony of the court reporter was received by the Court.  The court reporter joined the efforts of Judge [Circuit Judge] and the prosecutor to keep secret the inquisition and hearing.

      12.  The sworn facts contained in paragraphs numbered 1 through 21 of [Defense Counsel]'s motion filed in this matter on July 26, 1994, are incorporated and made a part of this section as Attachment 1.

II.  The Legal Issues

      It is also important to an efficient disposition of these proceedings that the parties clarify areas of dispute concerning the legal standards which apply in this case. The applicable legal standards are set out below, divided into several subsections so, at the end of each subsection, the prosecution can easily admit or deny that the correct legal standard has been stated and can specify in what manner any subsection is incorrect.

      1.  Sources of Applicable Legal Standards

      There are numerous layers of legal standards which establish the standards applicable to contempt proceedings; the United States Constitution; Illinois constitutional, statutory, as well as decisional law; and, Rules of Practice of the Circuit Court -- ______ Judicial Circuit, Rule 13.00. Each of these sources set out substantive and procedural standards which must be met before an order of contempt can be entered; the court must comply with the standards of all these sources before it may enter an order of contempt. Of course, if the substantive or procedural protections in the state or local law are less than, or conflict with, the protections afforded by the Constitution, then the constitutional standards prevail.

      The United States Supreme Court has most recently spoken to the constitutional standards for contempt proceedings in United Mine Workers v. Bagwell, ___ U.S. ___, 114 S.Ct. 2252 (1994); this case is the primary authority that controls here.

      The Rules of Practice of the Circuit Court -- _____ Circuit ("Rules of Practice" or "Local Rules") Rule 13.01, _____ Judicial Circuit, _____ County, Illinois, which defines contumacious conduct and establishes procedures which must be followed by this court in contempt proceedings, is as follows.

(a) Contumacious conduct defined. Contumacious conduct consists of verbal or nonverbal acts which:

(1) embarrass or obstruct the court in its administration of justice or derogate from its authority or dignity;

(2) bring the administration of justice into disrepute; or

(3) constitute disobedience of a court order or judgment.

(b)  Direct criminal contempt defined. Contumacious conduct constitutes a direct criminal contempt if it is committed in such a manner that no evidentiary hearing is necessary to determine the facts establishing such conduct and is committed in an integral part of the court while the court is performing its judicial functions.

(1) Court's alternatives. Upon the commission of an act constituting a direct criminal contempt, the court may:

(a)  summarily find the contemnor in contempt and impose sanctions instanter;

(b)  summarily find the contemnor in contempt and impose sanctions within a reasonable time; or,

(c)  delay the finding of contempt and the imposition of sanctions until a later time.  When the finding of contempt is delayed, the contempt proceeding shall be conducted in the same manner as an indirect criminal contempt as provided in paragraph (c) of this rule.

(2) Conduct specified/statement in mitigation.  Prior to an entry of a finding of contempt, the court shall inform the contemnor of the specific conduct forming the basis of the finding.  Prior to the imposition of sanctions, the court shall permit the contemnor an opportunity to present a statement in mitigation.

(3) Sanctions.  Upon a finding of direct criminal contempt, the court may impose a fine not to exceed $500.00, incarceration in a penal institution other than the penitentiary for a term not to exceed six months., or both; unless the contemnor is afforded the right to trial by jury, in which case, if the jury finds the respondent guilty of contempt, the court is not limited in the fine or incarceration it may impose.  The court, in the exercise of its discretion, may impose such other sanctions as it deems appropriate.

(4)  Written order required.  Upon imposition of sanctions, the court shall enter a written judgment order setting for the factual basis of the finding and specifying the sanctions imposed.

(5) When referral to another judge required.  Where a controversy between the judge and the contemnor is integrated with the alleged contumacious conduct and embroils the judge to the degree that the judge's objectivity can reasonably be questioned, referral to another judge on both issues of contempt and the issue of an appropriate sanction is required.  In this event, the judge  before whom the alleged contempt transpired shall specify in writing the nature of the alleged acts of contempt, shall direct that a record of the proceedings surrounding the said acts be prepared, and shall transfer the matter to the appropriate assignment judge for reassignment.  The judge hearing the proceedings after the reassignment shall base his findings and adjudication of the contempt charge solely on the transferred written charge and the record.

(6)  Appeal.  An appeal from a judgment of direct criminal contempt may be taken as in criminal cases.  Upon the filing of a notice of appeal, the court may fix bond and may stay the execution of any sanction imposed pending the disposition of the appeal.

(c) Indirect criminal contempt defined.  A contumacious act constitutes an indirect criminal contempt when it occurs outside the presence of the court or in an area that is not an internal or constituent part of the court, or the elements of the offense are otherwise not within the personal knowledge of the  judge.  A contumacious act committed in the presence of the court, but not summarily treated as a direct criminal contempt as provided in paragraph (b), may be prosecuted as an indirect criminal contempt.

(1) Petition for adjudication.  An indirect criminal contempt proceeding shall be initiated by the filing of a petition for adjudication of indirect criminal contempt.  The petition shall be verified and set forth with particularly the nature of the alleged contemptuous conduct.  The charge may be prosecuted by the State's Attorney, or if he declines, by an attorney appointed by the court.

(2) Notice of hearing.  If the court finds that the petition sets forth allegations which support the charge, it shall set the matter for hearing and order notice be given to respondent. . . .

(3)  Explanation of respondent's rights.  Upon the first appearance of the respondent, the court shall inform the respondent of his right to:

(a) notice of the charge and of the time and place of the hearing thereon;

(b) an evidentiary hearing, including the right to subpoena witnesses, confront the witnesses against him, and make a response to the charge;

(c) counsel and, if indigent, to the appointment thereof;

(d) freedom from self-incrimination;

(e) the presumption of innocence;

(f) be proven guilty only by proof of guilt beyond a reasonable doubt; and

(g) a trial by jury if the court, prior to the commencement of the hearing, declares that a sentence of incarceration or more than six months, a fine of more that $500.00, or both, may be imposed as a sanction upon a finding of guilty.

(4) When referral to another judge required.  Referral of the petition to another judge for the hearing on the issues of contempt and the imposition of sanctions is required where a controversy between the judge and the alleged contemnor is integrated with the alleged contumacious conduct and embroils the judge to the degree that the judge's objectivity may be reasonably questioned.

(5)  Statement in mitigation.  Upon an adjudication of contempt, the judge shall afford the contemnor the opportunity to make a statement in mitigation prior to the imposition of any sanction.

(6)  Sanctions.  The court in the exercise of its discretion, may impose sanctions as it deems necessary.

(7)  Written order required.  Upon an adjudication of contempt, the court shall enter a written judgment order setting forth the factual basis for the finding and specifying the sanctions imposed.

(8) Appeal.  An appeal from a judgment of indirect criminal contempt may be taken as in the case of direct contempt as  specified in paragraph (b) (6) of this rule.

      2.  Indirect, Direct and Summary Contempt

            A.  Rule of Practice 13.01.

      Under Rule of Practice 13.01(b), contempt can be "direct" only if, "no evidentiary hearing is necessary to determine the facts . . ."  Further, under subsection (b)(1)(c), if upon the commission of the purportedly contumacious act, the court "delay(s) the finding of contempt and the imposition of sanctions until a later time," then, "the contempt proceeding shall be conducted in the same manner as an indirect contempt. . ."

            B.  Illinois Law.

      Direct criminal contempt occurs, "in the very presence of the judge" and "no matter resting upon opinions, conclusions, presumptions or inferences should be considered." On the other hand, "[W]here the judge does not have full personal knowledge of every element of the contempt and its demonstration depends on the proof of facts, of which the court would have no judicial notice, the contempt is held to be indirect."  People v. L.A.S., 111 Ill. 2d 539, 490 N.E.2d 1271, 1273 (1986) (emphasis in the original) (cite omitted). See also, Pryweller v. Pryweller, 218 Ill.App.3d 619, 579 N.E.2d 432, 439 (1st Dist. 1991); People v. City of East St. Louis, 206 Ill.App. 3d 626, 564 N.E.2d 1372, 1379-80 (5th Dist. 1990).  Indirect contempt cannot be found and punished summarily. L.A.S., 490 N.E.2d at 1273. Where "[t]he requisite element of [the contemnor's] willfulness must be established by facts beyond the court's knowledge" the contempt is indirect, and cannot be found and punished summarily.  Id.at 1274.

      It is "evident" that contempt is indirect where "facts had to be determined by the taking of testimony."  In re Marriage of Wilde, 141 Ill.App.3d 464, 490 N.E.2d 95, 100 (2d Dist. 1986).  Thus, for example, even where the court personally believed a witness' testimony to be false, direct contempt could be found only if "[f]alsity of the testimony [appeared] from the [contemnor's] admissions in open court and from no other source. A court may not summarily punish a witness for contempt solely on the basis of the court's opinion that the witness is committing perjury." People v. LaRosa, 198 Ill.App.3d 862, 556 N.E.2d 611, 613 (1st Dist. 1990) (emphasis added).

            C.  The Constitution.

      Summary adjudications of contempt are used to maintain order in the courtroom "in the face of an actual obstruction of justice," where summary disposition is needed to ". . . preserve order and enable the court to proceed with its business." United Mine Workers, 114 S.Ct. at 2560 (emphasis added).  "If a court delays punishing a direct contempt until the completion of trial, for example, due process requires that the contemnor's rights to notice and a hearing be respected."  Id. "Summary adjudication of indirect contempts is prohibited . . ."  Id.

            D.  The Prosecution Should Admit or Deny.

            i.  Judge [Circuit Judge] delayed finding [Defense Counsel] in contempt from June 2, 1994, when the alleged act occurred, until June 9, 1994.  Thus, the summary finding of contempt was improper.

            ii.  Judge [Circuit Judge] conducted an inquisition into this matter, and, ex parte, and without notice to [Defense Counsel], received the testimony of the court reporter, ___________, on June 3, 1994.  [The court reporter]'s testimony was used as a basis for and incorporated into Judge [Circuit Judge]'s finding of contempt.  As the taking of testimony was used in the court's finding of contempt, the summary finding of contempt was improper.

            iii.  Judge [Circuit Judge]'s opinion of the truth or falsity of [Defense Counsel]'s statements was employed in his finding of contempt.  Thus, the summary finding of contempt was improper.

      3.   Notice

            A.  Rule of Practice 13.00

      Where the alleged contempt is indirect, or where the court "delays the finding of contempt and the imposition of sanctions," Rule 13.01(b)(1)(c), notice is required.  Under Rule 13.01(c), the prosecution must file a sworn petition for adjudication which "set[s] forth with particularity the nature of the alleged contemptuous conduct."  13.01(c)(1).  The court must "order notice be given to the respondent."  13.01(c)(2).  At the first court appearance, the court must inform the alleged contemnor of all the rights to which he is entitled.  13.01(c)(3).  No matter what type of criminal contempt is involved, the alleged contemnor is entitled to notice of the specific conduct involved and an opportunity to be heard in mitigation.  13.01(b)(2).

            B.  Illinois Law

      In indirect contempt, "the alleged contemnor is entitled to due process safeguards, including notice, opportunity to answer, and a hearing.  People v. L.A.S., 490 N.E.2d at 1273 (emphasis added).  "[T]he alleged contemnor must be informed of the charges against him in writing . . ."  LaRosa, 556 N.E.2d at 613 (emphasis added).

            C.  The Constitution

      In indirect contempt, and where the court delays punishing a direct contempt, notice is required.  United Mine Workers, 114 S.Ct. at 2560.

      Of course, there  is no interpretation of local, state or constitutional law that would allow for the court to actually conduct an evidentiary hearing to receive evidence on which to base a finding of contempt (such as the hearing where the testimony of Court Reporter ________ was received) without any notice to the alleged contemnor.

            D.  The Prosecution Should Admit or Deny.

            i. At no time prior to June 9, 1994, at the instant Judge [Circuit Judge] began dictating his order finding [Defense Counsel] in contempt, did the court or the prosecution or anyone acting for them give [Defense Counsel] notice that there was any problem with his acts or performance at the June 2, 1994 hearing on the motion to withdraw [Defendant]'s guilty plea or that his coduct was in any manner considered to be in contempt of the court.

            ii. Neither the court nor the prosecution nor anyone acting for them gave [Defense ounsel] notice of the ex parte evidentiary hearing held on June 3, 1994, where Judge [Circuit Judge] received the testimony of Court Reporter __________.                        iii. Neither the court nor the prosecution nor anyone acting for them gave [Defense Counsel] or [Defendant] notice that [Defense Counsel]'s representation of [Defendant] would be terminated as punishment for [Defense Counsel]'s alleged contempt.  Thus [Defense Counsel]'s contract rights and his right to practice his profession and [Defendant]'s right to counsel of his choice were all terminated without notice or due process of law.

      4.  Hearing.

            A. Rule of Practice 13.01

      In indirect contempt or where the court delays the finding of contempt, the alleged contemnor is entitled to an evidentiary hearing which includes the rights:  to subpoena witnesses; to confront the witnesses against him; to respond to the charge; to be represented by counsel; to the presumption of innocence; to be proven guilty only by proof of guilt beyond a reasonable doubt.  Rule 13.01(c)(3).

            B.  Illinois Law

      Where the alleged contempt is indirect, the alleged contemnor is "entitled to a formal hearing on the contempt charges and to all appropriate constitutional rights, including notice, reasonable opportunity to defend, assistance of counsel, a reasonable doubt standard of proof, and the privilege against self-incrimination."  Wilde, 490 N.E.2d at 100.  "[T]he law requires that the alleged contemnor be granted all due process rights so that he is given a reasonable opportunity to defend against the charge."  City of East St. Louis, 564 N.E.2d at 1379; People v. L.A.S., 490 N.E.2d at 1273 (same).

            C.  The Constitution

      "Criminal contempt is a crime in the ordinary sense [cite omitted] and criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings."  United Mine Workers, 114 S.Ct. at 2556.  These protections include the rights to notice of charges, summary process, to present a defense, and to the proof of guilt beyond a reasonable doubt standard.  Id. at 2557.D.

      Jury Trial

      It is a misnomer to designate a criminal contempt proceeding a "hearing."  Except in the rarely authorized summary proceedings, criminal contempt cannot be found absent the protections that the Constitution requires in criminal proceedings.  Thus, a criminal contempt proceeding is a criminal trial.  When the alleged contempt can be punished by "serious criminal sanctions," a jury trial is required.  United Mine Workers, 114 S.Ct. at 2563.  As contempt "often strikes at the most vulnerable and human qualities of a judge's temperament . . ." and "its fusion of legislative, executive and judicial powers summons forth the prospect of the most tyrannical licentiousness," "[a]ccordingly, in criminal contempt cases an even more compelling argument can be made than in ordinary criminal cases for providing a right to jury trial as a protection against the arbitrary exercise of official power."  United Mine Workers, 114 S.Ct. at 2559 (internal citations, quotation marks, ellipses, and brackets omitted).

      Rule of Practice 13.01(c)(3)(g) provides for a jury trial where a fine of more than $500.00 may be imposed.  As punishment for his alleged contempt, [Defense Counsel] was prohibited from representing his retained client, [Defendant].  This punishment exceeds the monetary value of $500.00.

      The Supreme Court has not defined a "serious criminal sanction" which triggers the constitutional right to a jury trial when it involves a punishment for contempt other than incarceration.  United Mine Workers, 114 S.Ct. at 2562, n.5.  However, termination of an attorney's right to represent a client and termination of the client's right to retained counsel of choice should certainly qualify as a "serious criminal sanction."

            E.  The Prosecution Should Admit or Deny.

i.  [Defense Counsel] was not afforded any of the constitutional due process protections before Judge [Circuit Judge] found him in contempt.

ii.  [Defense Counsel] was not afforded any of the rights set out in Rule of Practice 13.01(c)(3) before Judge [Circuit Judge] found him in contempt.

iii.  [Defense Counsel] was not afforded any of the rights set out in Rule of Practice 13.01(b)(2) before Judge [Circuit Judge] found him in contempt.

iv.  [Defense Counsel] was not afforded the opportunity to confront or cross examine Court Reporter _______ at the ex parte evidentiary hearing on June 3, 1994, where Judge [Circuit Judge] received her testimony nor was [Defense Counsel] provided the opportunity to present any evidence on his behalf before Judge [Circuit Judge] found him in contempt.

v.  Terminating [Defense Counsel]'s representation of [Defendant] as punishment for contempt exceeded a monetary value of $500.00 and thus, entitled [Defense Counsel] to a jury trial on the contempt charge.

vi.  Terminating [Defense Counsel]'s representation of [Defendant] as punishment for contempt constituted a serious criminal sanction, and thus, entitled [Defense Counsel] to a jury trial on the contempt charge.

      5.  Excessive, Unjustified and Unauthorized Punishment

      The punishment here was unjustified, unauthorized and beyond that allowed by law.  The punishment interfered with [Defense Counsel]'s contractual rights.  The interference with the contractual rights of [Defense Counsel] is an additional aspect of the punishment that is an issue. The termination of the attorney client relationship between [Defense Counsel] and [Defendant] concerns the rights of [Defense Counsel].  In addressing only the rights of [Defense Counsel] in this attorney client relationship, the State must be aware of the due process rights of [Defense Counsel] in his contract with [Defendant] as protected under the Due Process Clause of the Fourteenth Amendment, the Contract Clause of the Constitution, and statutory rights of [Defense Counsel] in his contract.  This issue includes the protections from excessive punishment as controlled by statutes, the Rules of Practice, the Illinois Constitution and the Eighth Amendment of the United States Constitution.

6.  Yick Wo v. Hopkins

      A careful examination of the facts of [Defense Counsel]'s contempt proceedings could suggest that there was selective use of the court's power of contempt.  A constitutional basis for this type of analysis has been known since Yick Wo v. Hopkins, 118 U.S. 356 (1886).

      7.   A Constitutional, Statutory and Commonsensical Analysis of the Alleged Contemptuous Act.

      Before we toil needlessly on already developed and established constitutional procedural concepts, the ultimate and initial barrier must be established.  The State must explain under what theory the conviction of [Defense Counsel] will stand.  The test is intent to commit the act.  The standard of proof required is beyond a reasonable doubt.  Rule of Practice 13.01(3)(f).

      If the State can overcome this initial barrier, it must then address all of the above issues.

      8.  Independent Adjudicator and Judicial Misconduct

      The possibility of judicial misconduct requires a careful examination by both the prosecution and the counsel for [Defense Counsel] of Judge [Circuit Judge]'s actions.  If the prosecution feels that judicial misconduct occurred, it should so state in a detailed analysis.  Then the prosecution should also state its position as to whether the misconduct annuls the contempt conviction, prevents further participation by Judge [Circuit Judge] as an adjudicator, or some other consequence.  If the prosecution feels that no judicial misconduct occurred, it should state this position in detail.  If so, the prosecution must clearly indicate whether it feels Judge [Circuit Judge] should remain the judge in this matter.

            A.  The Ex Parte Hearing.

      The ABA Model Code of Judicial Conduct, as codified in the Illinois Supreme Court Rules, will be at issue in this case.  S.Ct. Rule 63(A)(4) states:

A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.  A judge shall not initiate, permit, or consider ex parte communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except [in enumerated exceptions which do not apply here].

      The Committee Commentary to Rule 63 makes clear that, "[a] judge must not independently investigate facts in a case and must consider only the evidence presented."  (emphasis added).

      On June 3, 1994, Judge [Circuit Judge] held an ex parte hearing without giving any notice to [Defense Counsel].  If the People's position is that no ex parte hearing occurred, or that notice was given to [Defense Counsel], or that an ex parte hearing does not violate any statute, law, or code of judicial conduct, then it should so state in detail.

      Further the prosecution should disclose:  whether [Assistant State's Attorney], or any other representative of the State Attorney's office was given notice, formally or informally, of the June 3, 1994 hearing; whether [Assistant State's Attorney], or any other representative of the State Attorney's office was present at the June 3, 1994 hearing; whether [Assistant State's Attorney], or any other representative of the State Attorney's office was given advance notice, formally or informally, that [Defense Counsel] would be found in contempt; whether there were any ex parte communications, formal or informal, between Judge [Circuit Judge] and [Assistant State's Attorney], or any other representative of the State Attorney's office concerning [Defendant]'s case or [Defense Counsel]'s contempt.

            B.  Bias or Prejudice

      A judge should disqualify himself in a proceeding where his impartiality can reasonably be questioned.  S.Ct. R 63C(1).  Doubt as to the impartiality of a judge can arise where the judge has personal bias or prejudice concerning a party or his lawyer, or if the judge has personal knowledge of disputed evidentiary facts concerning the proceeding, like an ex parte hearing.  S.Ct. R. 63C(1)(a). By partaking in an activity, where the judge himself may be called as a witness, the judge is required to remove himself from the case.  A judge who violates these rules may be subject to discipline by the Illinois Courts Commission. S.Ct. R. 71.

      Under Rule of Practice 13.01(c)(4):

(4) When referral to another judge required.  Referral of the petition to another judge for the hearing on the issues of contempt and the imposition of sanctions is required where a controversy between the judge and the alleged contemnor is integrated with the alleged contumacious conduct and embroils the judge to the degree that the judge's objectivity may be reasonably questioned.

      In his July 15, 1994 order, Judge [Circuit Judge] said concerning his contempt finding against [Defense Counsel]:

The message should be clear that Rambo style representation, including misrepresentations, and a confrontational disparaging attitude is counterproductive.  It harms not only the system but the client.  It strains judicial tolerance past its limits.  No human being should be forced to listen to disparagements based on lies.  Practitioners must know that there are consequences when they choose this deplorable style of representation.  The contempt order stands . . .

      If the prosecution feels that Judge [Circuit Judge] should not remain as judge for the contempt proceedings, they should detail their ideas and take action by moving for the disqualification of Judge  [Circuit Judge].

      In previously seeking to resolve this matter informally, [Defense Counsel], through friends who are attorneys, informally, in camera proffered a statement to the court.  This statement was not filed and was never presented at any formal proceeding.  This statement was mentioned in Judge [Circuit Judge]'s July 15, 1994 order. Neither [Defense Counsel] nor anyone acting on his behalf publicly released this statement or gave it to the press.  Nonetheless, portions of this statement were quoted verbatim in an article in the [Local Newspaper].

      The State should reveal all knowledge of any type concerning the release of this statement to the press.

      9.  Prosecutorial Misconduct

      A prosecutor represents not an ordinary party, but a sovereign whose obligations to govern impartially are as compelling as its obligation to govern at all; therefore, the prosecutor's interest in a criminal prosecution is not to win a case, but to do justice.  Berger v. United States, 295 U.S. 78, 88 (1935).  The prosecutor cannot divagate from his or her duty to do justice simply because the prosecutor has ideological hostility toward the accused, hostility toward the advocate for the accused, has simple vindictiveness or even has the natural tendency to cover up mistakes or to protect another person from being exposed for their mistakes.

      In any case, every prosecutor has a duty to uphold the words and values of our Constitution and state laws and Rules of Practice.  The prosecutor can be responsible for the unconstitutional acts of another if the prosecution knew of the acts and voiced no opinion, nor attempted to correct the unconstitutional acts.  An ex parte hearing clearly violates Illinois Supreme Court Rule 63A(4), the Rules of Practice in this Court and numerous constitutional rights.  It is professional misconduct for a prosecutor to have known, be present at, or willfully leave uncorrected, an ex parte hearing.

      Additionally, the prosecutor must seek to enforce all Constitutional, State, and Rules of Practice regarding sentencing, either of [Defense Counsel] or [Defendant].

The prosecutor should not make the severity of sentences the index of his or her effectiveness.  To the extent that the prosecutor becomes involved in the sentencing process, he or she should seek to assure that a fair and informed judgment is made on the sentence and avoid unfair sentence disparities. 

ABA Standards Relating to the Administration of Criminal Justice, The Prosecution Function, ("Standard") 3-6.1(a).

      Specifically, the prosecutor should have assisted and should continue to assist the court in sentencing by providing complete and accurate information for use in the presentence report.  Standard 3-6.2(a).  If any inaccurateness or incompleteness comes to the prosecutor's attention, the prosecutor should attempt to provide the court and the defense with the complete and correct information. Standard 3-6.2(a).  Prior to the sentencing of both [Defendant] and [Defense Counsel], the prosecutor should have disclosed to the court and the defense "all unprivileged mitigating information known to the prosecutor."  Standard 3-6.2(b)

III.  Disclosure Issues

      The prosecutions is ethically, statutorily and constitutionally obligated to disclose certain facts in cases in which people are subjected to the criminal process.  The instant case, more than any other, begs for a heightened responsibility of openness and fairness in the disclosure of information.  [Defense Counsel] openly, fairly, and expeditiously disclosed relevant information within his knowledge by submitting a detailed motion to the court that was supported by an affidavit.  The State should now respond in a like manner by revealing in writing all facts known to them about this incident.

      A.  The Obligation and Reasons for Disclosure

1.  The Constitutional Duty to Disclose

      Due Process requires the State not to suppress evidence that is favorable to the accused or that will discredit the State's case, and upon request, the State must disclose to the accused all such information.  Brady v. Maryland, 373 U.S. 83 (1963).  See also, Mooney v. Holohan, 294 U.S. 103 (1935); Pyle v. Kansas, 317 U.S. 213 (1942).  This requirement of candor by the State encompasses information which bears upon the credibility of witnesses even though a witness may be a court reporter, a prosecutor, or a judge.  Additionally, the State is obligated to supply information that is directly material to guilt or innocence, as well as information relating to the