Oath of Civility

• Jurisdiction: United States,Federal,Hawaii
• Citation: Vol. 18 No. 06
• Publication year: 2014

Oath of Civility

by Charlene M. Norris

Rule 1.5(c), RSGH, states that the oath to be taken and subscribed by each attorney admitted to the Hawai'i bar shall state in pertinent part:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution and laws of the State of Hawai'i, and that I will at all times conduct myself in accordance with the Hawai'i Rules of Professional Conduct.

As an officer of the courts to which I am admitted to practice, I will conduct myself with dignity and civility towards judicial officers, Court staff, and my fellow professionals.

Rule 1.6(a) of the Rules of the Supreme Court of Hawai'i ("RSCH") provides for a license to be issued to each attorney having been examined and found to be of good moral character and to possess the necessary legal and educational qualifications, to practice in all courts of the State of Hawai'i as an attorney, counselor and solicitor during good behavior. So what are the consequences when an attorney behaves badly?

I. "Every action done in company, ought to be with some sign of respect, to those that are present." -George Washington.

Traditionally, attorneys who engaged in "contumacious conduct disruptive of judicial proceedings and damaging to the court's authority" have been punished with a finding of contempt.¹ For example, in Tarrant v. State, 537 So.2d 150 (Fla. Dist. Ct. App. 1989), the attorney was held in contempt for attacking the personal integrity and credibility of opposing counsel at length in closing argument.²

In In re Dodson, 572 A.2d 328 (Conn. 1990), an attorney in a sentencing hearing was held in contempt for interrupting a judge twice, calling his client's sentence "totally outrageous," speaking in a loud voice, and throwing a pencil on the ground; and in In re Ortiz, 604 N.E.2d 602 (Ind. 1992), the attorney was held in direct criminal contempt and sent to the Tippecanoe County Jail, and he was subsequently suspended for sixty days for defying the court's order to sit down at counsel's table.

In Schutter v. Soong, 873 P.2d 66 (Haw 1994), the Court found that the attorney's behavior during a medical malpractice trial was reprehensible, stating: " [w]e cannot fathom any situation that would warrant counsel yelling at the court or blatantly stating, in the presence of the jury that the court is working with opposing counsel. These are simply contemptuous acts that we find to be inexcusable." In United States v. Ortlieb, 274 E3d 871 (5^th Cir. 2001), the criminal defense attorney was held in criminal contempt for saying "go kiss my ass" to opposing counsel and "ah sh--" when the court overruled his objection.

In addition to contempt findings, courts have sanctioned attorneys for disruptive courtroom behavior based upon violations of Rule 3.5 (prohibiting disruption of a tribunal) and Rule 4.4 (prohibiting means to embarrass, delay or burden a third person) of the Rules of Professional Conduct. According to a Special Report on Courtroom Speech and Conduct,³ insults, unfounded accusations, threats and disrespect of the court trigger professional discipline charges more frequently than any other type of conduct. For example, in People v. Brennan, 240 E3d 887 (Colo. O.P.D.J. 2009), an attorney for the plaintiff in a discrimination suit claimed that the judge held a bias in favor of opposing counsel. When the judge held the attorney in contempt of court, he became increasingly disrespectful and contemptuous as trial progressed and used bullying tactics when he did not get his way This conduct violated Colorado Rules of Professional Conduct, Rule 3.5(c) (conduct intended to disrupt the court) and Rule 8.4(d) (conduct prejudicial to the administration of justice), and the attorney was suspended for one year and one day.

In In re Abbott, 925 A.2d 482 (Del. 2007), the Court publicly reprimanded an attorney for filing appellate briefs in which he made personal attacks against opposing counsel and suggested that the court would rule on the basis of bias against his client rather than on the merits of the case. Similarly, in Florida Bar v. Martocci, 791 So.2d 1074 (Fla. 2001), the attorney in a divorce action repeatedly called opposing counsel "crazy" and a "nut case" and physically threatened his opponent's father in court, for which he was publicly reprimanded and placed on two years' probation with conditions, including an evaluation for possible anger management and mental health assistance.

In Office of Disciplinary Counsel v. Breiner, 969 E2d 1285 (Haw 1999), the Court suspended a criminal defense attorney for six months for arguing with a judge during his opening statement, showing disrespect for a prosecution witness, muttering "I'm tired of this crap" in the presence of the jury and characterizing the proceedings as a "kangaroo court." In In re Golden, 496 S.E.2d 619, 622 (S.C. 1998), the attorney's use of sarcasm in questioning a deposition witness, and his combativeness, threatening words and intimidation were found to have "completely departed from the standards of our profession" as well as "basic notions of decency and civility," warranting a public reprimand. Additionally in Kentucky Bar v. Waller, 929 S.W2d 181 (Ky 1996), the Court suspended...