Ethically Speaking
| Publication year | 2011 |
| Pages | 40 |
Vol. 34, No. 4, 40. Ethically Speaking
Issue: August, 2011
Lawyers' Duties to Tribunals: Part I - IVIeritorious Claims and Defenses
Adecade ago, this column addressed a lawyer's duty to tribunals to bring , only meritorious claims and to raise only meritorious defenses.(fn1) While the obligation has not changed since then, a lot has, including the adoption of a new version of the Rules of Professional Conduct ("the Rules") in 2006(fn2) It seems to be an appropriate time, therefore, to revisit that duty as well as to review lawyers' other duties to tribunals. This will be the first of at least two columns that focus on a lawyer's obligations to tribunals.
The General Framework of the Rules
The Rules are divided into three parts. First, the Preamble and the Scope provide "general orientation" to the Rules.(fn3) Second, the Rules themselves are "authoritative.'"(fn4) Finally, one or more comments follow each Rule. They are to "explain and illustrate" the Rule they follow'(fn5) Comments do not," however, "add obligations to the Rules but provide guidance for practicing in compliance with the Rules.(fn6)
The Rules are also divided into eight chapters. Chapter 3 is entitled "Advocate," and, as the title suggests, sets out a lawyer's duties when appearing before a tribunal.(fn7) Often, transactional or other lawyers who do not conduct litigation do not think they need to worry about this chapter since they do not act as advocates. That is not a good position to take, however, as many of the documents or advice a non-trial lawyer prepares or gives will have legal effect only when implemented by a tribunal.(fn8) Virtually all lawyers, therefore, need to be conversant with a lawyer's duties to tribunals.
While the Rules are often thought to be definitive in terms of what is or is not ethical behavior for lawyers, they are not. First, the Rules' definition of "misconduct" is much more expansive than a simple violation of the Rules. "Misconduct" includes behavior which is not necessarily a violation of one of the Rules. Rule 8.4, which contains the definition of "professional misconduct," includes: (1) the commission of certain crimes (those "that reflect adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects")';(fn9) conduct involving dishonesty, fraud, deceit or misrepresentation;"(fn10) "conduct that is prejudicial to the administration of justice;"(fn11) and other types of conduct.(fn12) Although it is easy to overlook the catch-all language cited above, neither the Board of Professional Responsibility nor the Wyoming Supreme Court do. That language has been cited as the basis for sanctions, including disbarment.(fn13)
The second reason that the Rules are not definitive, is that they must be read and applied in context. "The Rules presuppose a larger legal context shaping the lawyer's role. That context includes ... substantive and procedural law in general."(fn14)
Third the Rules incorporate other legal standards. Rule 3.4, which is entitled "Fairness to opposing party and counsel," contains, inter alia, a provision that " [a] lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal ... (fn15) (The term "knowingly disobey" is in bold as the word "knowingly" is defined, and while the definition is primarily subjective, the definition has an objective gloss, i.e., "[a] person's knowledge may be inferred from circumstances."(fn16) Given the general requirement that a lawyer have "the legal knowledge [and] skill ... reasonably necessary for the representation,"(fn17) it will be hard for a lawyer to argue that he or she does not know about applicable court rules, such as Rule 11 of the Wyoming Rules of Civil Procedure that establish independent standards for lawyers.
Finally, the Rules incorporate the language of Rule 11, something that the American Bar Association's Model Rules do not do.(fn18) As a result, Wyoming lawyers must meet both the subjective good faith requirement of the Model Rules, which is in Wyoming Rule 3.1(a), and the objective standard required by Rule 11, a requirement, that is, that the lawyer make a "reasonable inquiry" into the facts and the law, and the contention "is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law ...(fn19)
The Role a Lawyer is Fulfilling
While the Rules apply to all lawyers all the time,(fn20) they establish difierent standards regarding claims and defenses depending on what role the lawyer is playing. The first distinction is between lawyers in criminal practice and those in civil practice. The second is between those lawyers in criminal practice who prosecute and those who represent the accused.
Civil Versus Criminal Practice
The...
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