HB Litigation Conferences Lead Litigation 2013

1. November 14-15, 2013

3. Judge Lynne Battaglia
Maryland Court of Appeals, 3rd Appellate Judicial
Circuit

4. 

―A professional lawyer is an expert in law
pursuing a learned art in service to clients
and in the spirit of public service; and
engaging in these pursuits as part of a
common calling to promote justice and public
good.‖
Maryland Judicial Task Force on Professionalism, Reports and Recommendations 14
(2003), quoting ABA Professionalism Committee Rep., Teaching and Learning
Professionalism 6 (1996).

5. 
In1999, the Conference of Chief Justices published
a report entitled ―A National Action Plan on Lawyer
Conduct and Professionalism,‖ calling for the
establishment of professionalism commissions
under the authority of State Supreme Courts,
observing that a majority of attorneys are
competent professionals but that the . . .

6. 
In 2003, the Maryland Judicial Task Force on Professionalism
documented through 22 meetings with lawyers in each
Maryland county that there existed an actual significant
decline in professionalism in the state evinced by incivility
amongst members of the Bar:
 Senior members of the Bar who had been practicing for as
many as fifty years observed that professionalism had
declined.
 Other attorneys observed a similar decline in
professionalism marked by ―rancorous discovery
disputes; a loss of trust between lawyers . . . ; a
breakdown of the traditional mentoring of new lawyers . .
. ; [and] a lack of civility in and out of the court room.‖
 Other unprofessional behavior observed included ―rambo
tactics‖ in litigation, failure to return phone calls, and
increasingly contentious behavior by attorneys.

7. 
Florida
◦ In 1993, the Florida Bar commissioned a survey
of Florida lawyers to formulate data regarding
the characteristics of Florida lawyers, which
found that lawyers had a negative attitude
toward a ―substantial minority‖ of their
colleagues, finding that many could ―not be
trusted,‖ ―ha[d] little regard for truth or
fairness,‖ and were ―pompous and obnoxious.‖
◦ In 1995, the Florida Bar commissioned a
follow-up study, which found that the most
serious problem Florida lawyers faced was a
lack of professionalism.

8. 
Massachusetts
◦ In 2002, the Boston Bar Association published a report entitled
―Task Force on Civility in the Legal Profession,‖ which
conducted informal surveys of judges and clients, among
others, which revealed the following uncivil and unprofessional
behavior:
◦ Judges Observed:
 Personal attacks on the opposing party in memoranda
submitted to the court
 A far too prevalent practice of requesting sanctions
◦ Clients Observed:
 Insulting, demeaning, and arrogant behavior
 Sarcasm and yelling
 Failing to allow a deponent to respond to a question
◦ The Board of Bar Overseers, moreover, stated that it received
two hundred complaints from the public per year pertaining to
uncivil behavior by lawyers.

9. ◦ The Maryland Judicial Task Force on Professionalism
observed a number of potential causes of
unprofessional conduct including:
 A decline in the number of attorneys participating in Barrelated activities.
 Clients unrealistic expectations and clients‘ frequent view
that an attorney should act with the same degree of animus
toward opposing counsel as litigants may feel toward each
other.
 Economic pressures on lawyers as a result of a declining
economy and growing legal profession.
 The use of technology decreasing face-to-face
communication and instant reaction, without thought.
 Media and advertising providing a skewed and negative view
of the profession.

10. 
Another potential cause of unprofessional and uncivil behavior
included increasing diversity amongst members of the Bar, which
eliminated its homogeneity, but some have suggested that there
was never a golden age of civility, but rather, a time when the
legal community was small, closed, and discriminatory, and
lawyers‘ perception of a ―civil‖ time was maintained by
precluding those with differing viewpoints from the Bar. As the
Maryland Judicial Task Force on Professionalism observed in its
survey of suburban lawyers:

11. 
In observing a decline in professionalism,
many states focused on the issue of declining
civility, and while civility undoubtedly plays a
significant role in professional behavior,
professionalism is an amorphous concept
marked by a number of other values.

12. 

In Maryland, the Judicial Task Force on Professionalism found:
This variegated concept of Professionalism is reflected in
Maryland‘s ―Ideals of Professionalism‖:

13. 
Supreme Court of Florida‘s Commission on
Professionalism:
◦ – ―The essential ingredients of professionalism are
character, competence, civility, and commitment.‖

Hawaii Supreme Court Commission on
Professionalism:
◦ ―‘Professionalism‘‖ includes competence, civility,
legal ethics, integrity, and commitment to the rule
of law, to justice, and to the public good.‖

14. 
Georgia Chief Justice‘s Commission of
Professionalism
◦ ―The Commission espouses the values of
competence, civility, character, commitment to the
rule of law, to the lawyer's roles as counselor,
officer of the court and solver of problems,
commitment to pro bono, community and public
service, and to work for the improvement of the law
and the legal system and to ensure access to that
system.‖

15. 
The concept of professionalism is embodied in lawyers‘
relationships with clients, opposing parties and their
counsel, courts, colleagues in the practice of law, the
profession, and to the public, as evinced by Maryland‘s
Ideals of Professionalism. For example it provides:
 A lawyer should: ―maintain an open and respectful
dialogue with clients and opposing counsel.‖
 A lawyer should understand that ―maintaining
decorum in every venue, especially in the
courtroom, is neither a relic of the past nor a sign
of weakness; it is an essential component of the
legal process.‖
 A lawyer should recognize ―that the practice of law
is a calling in the spirit of public service, not merely
a business pursuit.‖

16. 
This relationship component
of professionalism is likewise
reflected in the Lawyer‘s
Creed developed by Georgia‘s
Chief Justice‘s Commission on
Professionalism.

17. ◦ Attorney Grievance Commission of Maryland v.
Payer, 425 Md. 78 (2012)
 In an attorney grievance matter, the Court of Appeals
of Maryland observed that the attorney representing
the Respondent engaged in unprofessional conduct
when he referred to the trial court judge repeatedly by
his last name only; accused the judge of
incompetence; referred to the clients that Respondent
had represented, who grieved, as ―scoundrels‖ and
―sleazy characters‖; and characterized the case as ―a
case study in what occurs when a trial judge
mindlessly sucks down material that is spoon-fed to
him in a Proposed Order and then regurgitates it into
his own Order without even bothering to check its
accuracy.‖

18. 
Writing for the Court, Judge Alan Wilneradmonished counsel
for what he characterized as ―unjustified and unprofessional
personal attacks on [the trial court judge], on the Assistant
Bar Counsel who prosecuted the case, and on the complaint
client,‖ and concluded that:

19. 

In101 Geneva LLC v. Wynn, 89 SEPT.TERM 2012,
2013 WL 5663815 (Md. Oct. 18, 2013), the Court
of Appeals of Maryland considered, inter alia,
whether a provision in an advertisement for a
foreclosure sale imposing an additional fee on
the successful bidder in the event of a default
was permissible.
Counsel for the Trustees holding the foreclosure
sale asserted a proposition in its brief that
seemingly provided significant support for his
position that such a fee was permissible . . .

20. Compare the assertion with the actual language of the case:
Trustee‘s Brief
―As this Court clearly stated
in Simard v. White, 383 Md.
225, 859 A.2d 168 (2004),
Trustees acting under a
power of sale
contained in a deed of
trust must have

discretion to outline the
manner and terms
of sale‖...‖ Id. at 312,
859 A.2d at 200.‖
(emphasis added in
brief).
Language of Simard
―Trustees acting under a
power of sale contained
in a deed of trust have
discretion to outline the
manner and terms of
sale, provided their
actions are consistent
with the deed of trust
and the goal of securing
the best obtainable
price:‖

21. 
Opposing counsel, in his brief, pointed out the
absence of the conditional language and the
addition of the word ―must‖; nevertheless, counsel
for the Trustees made no correction to the Court of
Appeals prior to, or during oral argument, and was
admonished for it at oral argument:
 THE COURT: ―I think it‘s incumbent on you to
know that before you address the Court you
should be making relevant corrections. Because
I think that that was inappropriate to add a
word to a quote of this Court and leave out the
conditional.‖

22. ◦ In 2008, based on many of the findings of the 2003
Judicial Task Force, the Maryland Judicial Commission on
Professionalism recommended a number of measures,
many of which were adopted, including:
 Adopting Standards of Professionalism.
 Altering the new admitteecourse on professionalism to
include breakout sessions based on practice areas and
emphasizing real concerns of client complaints by including
speakers from the Attorney Grievance Commission.
 Permitting new admittees to the Bar to sign up for mentoring
at a required professionalism course, in which experienced
practitioners are paired with newly admitted members of the
Bar based on interest in particular practice areas and
geography.

23. 
Other measures taken include:
◦ The establishment of the Professionalism Center,
supported in part by a five dollar assessment on all
attorneys.
◦ The development of a professionalism course for
new judges.
◦ The development of methods to address aging
lawyer issues.
◦ The development of a symposium regarding the
future of the practice of law.

24. 
Nationwide, numerous commissions and committees have
been implemented to restore professionalism to the
practice of law.
◦ Fifteen state-court sponsored commissions on professionalism.
◦ Fourteen state-bar sponsored professionalism committees.

While all commissions and committees ultimately seek to
enhance professionalism, their goals vary, ranging from
broad-based goals of ―encouragement of professionalism
in the practice of law‖ (South Carolina), to more specific
goals such as to ―promote among the lawyers and judges .
. . principles of integrity, professionalism and civility; to
foster commitment to the elimination of bias and
divisiveness within the legal and judicial systems; and to
ensure that those systems provide equitable, effective and
efficient resolution of problems and disputes for the
people of Illinois.‖ (Illinois).

25. 
―Macro‖ Approach
◦
◦
◦
◦
◦
◦
◦
◦
◦

CLEs on Professionalism
Oaths, Creeds, and Codes Pertaining to Professionalism
Educational Programming
Participation in Law School Programming
Convocations/Symposia on Professionalism Topics
Video programming (E.g., ―A Day in the Life of a Family Law Practitioner‖)
Lawyers‘ Oral History Project (Illinois)
Professionalism Day (New Jersey)
Writings, Essays, Articles, and other pieces on Professionalism
―Micro‖ Approach
◦ Committees implemented to resolve professionalism complaints by
clients, lawyers, and judges (New Jersey and North Carolina)
◦ Professionalism/Community Service Awards
◦ Coordinating and Providing Mentoring Programs
◦ ―Take Your Adversary to Lunch‖ (Georgia)
◦ Judicial Response Committee (North Carolina)
◦ Media Communication Programs (Indianapolis)

26. 
An underlying cause of incivility and
unprofessional behavior is often the belief that
zealous advocacy and professionalism are
incompatible.
◦ ―Some lawyers believe that their duties to clients require
an absolutely no-holds-barred approach meant to make
life as unpleasant as possible for the client‘s legal
adversaries. . . . Whether described as Rambo lawyers,
pit bulls, avenging angels, or an opponents worst
nightmare, these lawyers seem to believe that anything
less will fail to maximize client objectives.‖
 Peter R. Jarvis and Katie M. Lachter, The Practical Case for
Civility, in Essential Qualities of the Professional Lawyer49
(2013).

27. 

A 2007 Illinois Survey on Professionalism concluded
that much of the unprofessional behavior was likely
deliberate and used as a litigation tactic as evinced by
the subtle tactics used (sarcasm) and the venue of the
behavior (behind the scenes, rather than in open
court).
Often, the client may drive unprofessional behavior,
who may request, for example, an attorney to
respond to discovery requests with cryptic discovery
responses.
◦ This client-driven problem was further evident in the
Maryland Task Force on Professionalism Report, which
surveyed lawyers in rural communities who expressed
concerns that clients were turning to outside counsel
because they perceived the Bar in rural communities to be
too collegial.

28. 
The Maryland Ideals of Professionalism
encompass the values that being an adversary
does not warrant unprofessional behavior,
requiring lawyers to:
◦ Understand that hostility between clients is not
grounds for a lawyer‘s hostility or disrespect.
◦ Demonstrate courtesy and respect in all contexts,
not just in the court room.
◦ Respect differing points of view and show empathy
for others.
◦ Not allow a client‘s improper motives to influence a
lawyer‘s action or advice.

29. 




Uncivil behavior diminishes not only the profession and its public
perception, but diminishes the individual and those with whom
he or she interacts.
Uncivil behavior tends to trigger a similar response from
opposing counsel, making it less likely that the parties will agree
to a resolution that may benefit the client.
Uncivil behavior and Rambo-style litigation tactics consume time
and client resources; for example, time spent drafting e-mails,
time spent drafting motions for sanctions, and time spent
quarreling at depositions is time in which a client may be getting
billed, but her cause not being furthered.
Uncivil behavior may alienate judges who, consequently, may be
less sympathetic to a client‘s case.
Uncivil behavior with clients may lead to a loss of clients, and
worse, potential grievances resulting in disciplinary measures
against the attorney.

30. 

Because Rambo-style litigation may occur at
the behest of a client, it is essential that these
practical advantages are explained.
What if, despite these explanations, a client
insists in proceeding in a difficult manner—
for example, the client insists that the lawyer
grant no extensions or extend any other
courtesies that are not otherwise required?

31. 

Judges as role models of professionalism
Judges publishing an attorneys unprofessional
behavior in their written opinions:
◦ Recall Attorney Grievance Commission of Maryland v.
Payer, in which Judge Wilner, writing on behalf of the
Court of Appeals of Maryland, admonished counsel for
his name-calling in his brief to the court, citing
specifically Maryland‘s ―Ideals of Professionalism‖:
 ―More recently, by its adoption of Ideals of Professionalism,
we have explained that lawyers are constrained by certain
precepts of professionalism, which ‗require[ ] civility in all
dealings, showing respect for differing points of view, and
demonstrating empathy for others‘ and an understanding
that ―‘a lawyer can advocate zealously a client's cause in a
manner that remains fair and civil.‘‖

32. 
Rule Based Sanctions:

Concerns raised to the Maryland Task Force on
Professionalism regarding proposed rule 1-342:
◦ Maryland Judicial Task Force recommended the adoption of
Maryland Rule 1-342: ―If the court finds that the conduct
of any counsel violates the Standards of Professionalism,
the Court may impose sanctions as the Court deems
appropriate, including the assessment of a monetary civil
penalty, a monetary award, or both.‖
 It could diminish other rules, including the Rules of Professional
Conduct and a judge‘s exercise of the contempt power.
 It could be used to harass lawyers.
 It could further escalate already contentious disputes.
 The rule could become a ―sword‖ rather than a ―shield,‖ in that
unprofessional lawyers could file frivolous motions for sanctions
and only further ―rambo-style‖ litigation.
 It could unintentionally curb zealous advocacy.

33. 

Courts using their inherent authority to regulate
the legal profession to impose ad-hoc sanctions
for unprofessional conduct:
Sahyers v. Prugh, Holliday &Karatinos, P.L.,560 F.3d 1241,
1243 (11th Cir. 2009)

Sahyers was discharged from her employment as a paralegal at
a law firm and retained counsel to represent her in an action
against her former employer under the Fair Labor Standards Act
for unpaid overtime. Per Sahyers‘s instruction, Sahyers‘s
attorney made no attempt to give notice of her claim to the
defendant, nor did Sayhers attempt to collect the unpaid
overtime on her own, but instead, filed the action in court.
Sahyers recovered the unpaid overtime, but was denied
attorney‘s fees for which prevailing Plaintiffs are generally
entitled under the FLSA, because the United States District
Court determined that the failure to provide the defendant
notice of Sahyers‘s claim warranted denying the payment of her
attorney‘s fees.

34. 
In affirming the judgment of the District Court, the Eleventh
Circuit opined:

―A federal court may wield its inherent powers over the lawyers
who practice before it. This control derives from a lawyer's role as
an officer of the court. . . . The district court's inherent powers
support its decision here. Defendants are lawyers and their law
firm. And the lawyer for Plaintiff made absolutely no effort-no
phone call; no email; no letter-to inform them of Plaintiff's
impending claim much less to resolve this dispute before filing
suit. Plaintiff's lawyer slavishly followed his client's instructions
and-without a word to Defendants in advance-just sued his
fellow lawyers.As the district court saw it, this conscious
disregard for lawyer-to-lawyer collegiality and civility caused
(among other things) the judiciary to waste significant time and
resources on unnecessary litigation and stood in stark contrast to
the behavior expected of an officer of the court.The district court
refused to reward-and thereby to encourage-uncivil conduct by
awarding Plaintiff attorney's fees or costs. Given the district
court's power of oversight for the bar, we cannot say that this
decision was outside of the bounds of the district court's
discretion.‖

35. 
Criticisms of the Sahyer decision:
◦ Civility and Collegiality- Unreasonable Judicial
Expectations for Lawyers as Officers of theCourt, 2
St. Mary's J. Legal Mal. & Ethics 324 (2012)
 Because of the poorly-defined ―officer of the court‖
standard, the threat of such sanctions may curb a
lawyer‘s obligation of zealous advocacy.
 While it may be universally agreed that promoting
civility is a noble cause, what constitutes incivility is a
subjective judgmentthat may fall into a gray area.

36. 

Permitting clients to recover their attorney‘s fees when a lawyer acts
unprofessionally:
◦ In Abramson v. Wildman, 184 Md. App. 189 (2009), the Court of Special
Appeals of Maryland upheld a $13,000 damages award on a breach of
contract claim by a client against his attorney; the $13,000 represented
the amount of attorney‘s fees charged. The Plaintiff alleged that attorney
Abramson breached his contractual obligation to represent him in a
professionally competent manner by inter alia:
 Presenting a false financial statement to the trial court judge.
 Failing to advise him of settlement options.
 Failing to properly advise him of the merits of his case.
The court, quoting 7 Am. Jur. 2d Attorneys at Lawwith approval, stated:

38. 



Judge Lynne Battaglia
Maryland Court of Appeals, 3rd Appellate Judicial Circuit
410.260.1565
lynne.battaglia@mdcourts.gov