Chapter 29 Legal-Writing Ethics
| Jurisdiction | New York |
Ethics permeate every part of a lawyer’s professional life, including legal writing.435 Few law schools teach ethics in the context of legal writing for more than a few moments here and there, but all should.436 A lawyer’s writing should embody the profession’s ethical ideals. Courts and disciplinary or grievance committees can punish lawyers who write unethically. This article notes some of the ethical pitfalls in legal writing.
Rules Lawyers Must Know
Most lawyers know the American Bar Association’s Model Rules of Professional Conduct. Law students in ABA-approved law schools learn them,437 and New York State Bar applicants study them to pass the Multistate Professional Responsibility Examination (MPRE). New York lawyers must be familiar with the New York Rules of Professional Conduct, which differ from the Model Rules in substance and style. 438
The New York Rules are promulgated as joint rules of the Appellate Division,439 which is charged with disciplining lawyers who violate the Rules. A lawyer whose writing falls below the standards set in the Rules might face public or private reprimand, censure, or suspension or disbarment. The Disciplinary Rules are not binding on federal courts in New York State.440 However, because the federal district courts in New York have incorporated by reference the Disciplinary Rules into their local rules,441 federal courts will discipline lawyers who violate them.
Courts, too, can sanction lawyers for misconduct.442 To avoid being sanctioned for deficient legal writing, lawyers must know the pertinent law and facts of their case, the court’s rules about the form of papers, and the Rules.443 Court-ordered sanctions differ from disciplinary action. They can range from costs and fines on lawyers or their clients, or both, to publicly rebuking lawyers. Courts sanction lawyers to discourage wasting judicial resources on litigation that lacks merit and to punish lawyers who assert meritless claims. Courts also sanction to make whole the victims of harassing or malicious litigation. 444
Lawyer’s Role as Advocate
The first question lawyers must ask themselves is whether they should handle a particular case or client. New York lawyers have a gatekeeping role to prevent frivolous litigation. Lawyers must decline employment when it is “obvious” that the client seeks to bring an action or argue a position to harass or injure or when the client seeks to argue a position without legal support. 445
When is it “obvious” that a claim lacks merit? One factor is whether the lawyer claims to specialize in a practice area and therefore should have known that an action was meritless. One New York court sanctioned for making frivolous arguments two defense lawyers who had held themselves out as specialists.446 The court stated that sanctions were appropriate because the lawyers knew that their arguments were frivolous but still wasted the court’s time and their client’s and the plaintiff’s time and money.447 The Appellate Division, Third Department, eventually disbarred one of the defense attorneys for making the same frivolous arguments in eight cases. 448
Lawyers whose potential client litigates for a legitimate purpose must then decide whether they can represent the client effectively. Lawyers have an ethical responsibility to be prepared and competent to represent a client.449 A lawyer incompetent to represent a client may decline employment, associate with a lawyer competent to represent the client, refer the matter to a competent lawyer, or tell the client that the lawyer needs to spend time studying a legal issue or practice area. This rule has teeth. For not verifying another’s writing and research, local counsel,450 co-counsel,451 and supervising attorneys452 risk court sanction and discipline.
A lawyer who accepts employment must represent the client zealously.453 Lawyers also owe a duty to the court to be candid about the law and the facts of a case.454 The duties to client and court might create a conflict lawyers must resolve before putting pen to paper — or finger to keyboard.
Research
Lawyers must avoid the pitfalls of under-preparation. Poor research wastes the court’s time and the taxpayer’s money. It also wastes the client’s time and resources.455 Lawyers must know the facts of the case and the applicable law. Knowing fact and law adverse to their clients’ interests helps lawyers advise their clients and argue their cases. Lawyers must know adverse facts and law for ethical reasons, too. A lawyer must cite controlling authority directly adverse to the client’s position if the lawyer’s adversary has failed to cite that controlling authority.456 Lawyers who move ex parte or seek an order or judgment on a default must further inform the court fully about contrary fact and law to insure that the court commits no injustice. 457
Failing to find controlling cases reflects poorly on the lawyer’s skill as an advocate and jeopardizes the client’s claims.458 Courts are unsympathetic to lawyers who bring claims that, in light of controlling authority, should not be brought. The case law on this point is legion. 459
Lawyers must cite cases that continue to be good law. They may not conceal from the court that a case they cite has been reversed or overruled, even if it was on other grounds. Citing reversed cases or overruled principles is a sure way to lose the court’s respect. In one example, a federal district court in Illinois chastised the lawyers for failing to make sure that the cases they cited still controlled.460 In response to the lawyers’ statement that the court’s public disapproval would damage their reputation, the court stated that the reprimand’s effect on their reputations “is perhaps unfortunate, but not, I think, undeserved.” 461
Argument
Ethical writing is more persuasive than deceptive writing.462 Disclosing adverse authority, even when the lawyers’ opponents haven’t raised it, can diffuse its effects and increase confidence in the lawyers’ other arguments. Lawyers who don’t address adverse authority risk the court’s attaching more significance to that authority than it might otherwise deserve. The more unhappy a lawyer is after finding adverse authority, the wiser it is to address it.463 It’s not enough to find controlling authority. To argue competently, a lawyer must also know what the case or statute stands for. One defense lawyer who misinterpreted an important case in her brief faced possible sanctions from a New York federal district court.464 The court scheduled a hearing to determine whether the lawyer’s misstatement occurred intentionally or due to her “extremely sloppy . . . reading” of the case.465 To make a point, and possibly to humiliate, the court ordered the lawyer to bring her supervisor to court “to discuss the overall poor quality of the defendants’ brief.” 466
Lawyers must cite cases honestly.467 They must cite what they use and use what they cite.468 They mustn’t pass off a dissent for a holding.469 The cases must also conform to what the lawyers argue they stand for. Thus, a federal district court in New York ordered a plaintiff’s lawyer to show cause why it shouldn’t sanction him for, among other briefing mistakes, citing four cases that didn’t support his argument.470 The lawyer’s mistake was to cite four cases not resolved on the merits. 471
A lawyer may argue a position unsupported by the law to advocate that the law be extended, limited, reversed, or changed. It chills advocacy to sanction for what, in hindsight, is frivolous litigation. But as one New York court explained, frivolous litigation is “precisely the type of advocacy that should be chilled.” 472
Lawyers must also argue clearly. Unclear arguments increase the possibility that courts might err. One Missouri appellate court explained that briefs that don’t competently explain a lawyer’s arguments force the court either to decide the case and establish precedent with inadequate briefs or to fill in through research the gaps left by deficient lawyering.473 Rejecting the idea that it should do the lawyers’ research for them, the court dismissed the appeal. 474
To embody the profession’s ethical ideals, lawyers’ writing must be accurate and honest. Citing authority is common sense; authority bolsters argument. But citing can be a must: some lawyers have incurred sanctions and reprimands for arguing positions without citing legal authority at all. 475
Civility
Lawyers should be courteous to opposing counsel and the court.476 Appellate lawyers may attack the lower court’s reasoning but not the trial judge personally.477 Never may a lawyer make false accusations about a judge’s honesty or integrity.478 Many courts have sanctioned lawyers for insulting their adversaries or a lower court. In one case, the Appellate Division, First Department, sanctioned a lawyer for attacking the judiciary and opposing counsel.479 The court found that the lawyer’s behavior “pose[d] an immediate threat to the public interest.” 480
Ghostwriting
The American Bar Association, while condemning “extensive” ghostwriting for pro se litigants, has found that disclosing ghostwriting is not required if the lawyer only “prepare[s] or assist[s] in the preparation of a pleading for a litigant who is otherwise acting pro se.”481 But the Association of the Bar of the City of New York’s Committee on Professional and Judicial Ethics has concluded that lawyers may not prepare papers for a pro se client’s use in litigation “unless the client commits . . . beforehand to disclose such assistance to both adverse counsel and the court.”482 At least two federal district judges in New York have disapproved of ghostwriting. 483
So many judicial opinions trash lawyers for their writing that it’s apt for lawyers and judges to consider this:
...Reading these cases, we might experience a bit of schadenfreude—being happy at the misfortune of some other lawyer (especially a prominent or rich
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