Substance & Style
| Publication year | 2014 |
| Pages | 10 |
| Citation | Vol. 83 No. 9 Pg. 10 |
By Joseph P. Mastrosimone
Mind Your Manners
If you don't have anything nice to say, don't say anything at all.
— Your Mother
It is the end of rather vexing day and you are drafting a motion to compel discovery. Opposing counsel has been, in a word, uncooperative. Your draft reflects your frustration as you colorfully explain to the court how counsel apparently reads at a second-grade level as he is unable to grasp the meaning of both the discovery rules and your straightforward reasonable requests. You pause. You chuckle. You then hear your mother's voice whispering in your ear. You then, thankfully, edit. We have all been there and we have all thanked Mom for her sage advice. However, the angels of our better nature are not the only things keeping us from engaging in such behavior. Lawyers must be aware that a higher law — the Kansas Disciplinary Administrator — has something to say when manners are forgotten.
Kansas Rule of Professional Conduct 3.5(d) provides that a lawyer "shall not . . . . engage in undignified or discourteous conduct degrading to a tribunal."[1] While lawyers certainly retain their right to criticize judges and others, they must do so with caution.[2] Advocacy that exceeded zealousness and crossed into discourteousness has landed attorneys in ethical hot water. Questioning a judge's ethics or neutrality without basis and the use of colorful language to describe a lower court's ruling during an appeal not only reflects poorly on the attorney's advocacy skills but also violates the rules of ethics.[3]
Rule 3.5(d) implicates much more than lawyers who unwisely choose to direct their discourtesy towards judges. The Kansas Supreme Court has defined "tribunal" as including "more than the judge himself; it includes the entire forum, the entourage, the setting in which the proceedings are being conducted."[4] Conduct directed toward witnesses, court personnel, and other lawyers all easily fall within Rule 3.5(d)'s sweep. For example, the Supreme Court in In re Swarts III found an attorney violated Rule 3.5(d) when he directed expletives, not at the judge, but at opposing counsel after the hearing had concluded.[5] Lawyers' conduct towards other lawyers falls within the rules even when it does not involve the practice of law.[6]
Rule 3.5(d) applies even beyond the physical confines of the courtroom to situations where it...
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