Standards of Professional Conduct
PREAMBLE
Society at this time seems to be accepting a fundamental loss of common courtesy as a trend that accompanies the fast-paced existence most Americans now live. Perhaps instant communication, in which more information needs to be assimilated more rapidly, has rendered thoughtfulness nearly impossible. Perhaps it is simply the cynicism inherent in a society that values winning at all costs.
It is appropriate for judges and lawyers to revive valuable traditions that may be lost. Civility is particularly important in the courtroom where emotions are close to the surface because of the normal conflicts that arise in the search for the truth. These standards address and respond to concerns, not only in the State of West Virginia, but through the nation, over deteriorating professionalism.
Lawyers’ conduct should be characterized at all times by personal courtesy and professional integrity. In fulfilling their duty as lawyers to represent a client vigorously, they should be mindful of their obligations to the administration of justice. Lawyers owe to opposing counsel, the parties, the courts and the court’s staff a duty of courtesy, candor, honesty, diligence, fairness and cooperation.
Judges’ conduct should be characterized at all times by courtesy and patience toward all participants. Judges owe to all participants in a legal proceeding courtesy, attentiveness, respect, diligence, punctuality, protection against unjust and improper criticism or attack, and a dedication to the proper administration of the courts.
Conduct characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully and efficiently, and tends to delay and often to deny justice.
The following standards are designed to encourage lawyers and judges to meet their obligations to each other, to litigants and to the system of justice, and, thereby, to achieve the goals of civility and professionalism, both of which are hallmarks of a learned profession dedicated to public service.
Lawyers and judges should make a mutual and firm resolution to these standards. Voluntary adherence will promote the commitment by all participants to improve the administration of justice throughout the State of West Virginia.
These standards shall not be used as a basis for a cause of action nor shall they form a presumption that a legal duty has been breached. Nothing in these standards supersedes or detracts from existing disciplinary codes or alters existing standards of conduct against which lawyer or judicial misconduct or negligence may be determined.
These standards should be reviewed and followed by all West Virginia judges as that term is defined in Canon 6 of the Code of Judicial Conduct and by all lawyers licensed to practice in this State or who are admitted pro hac vice. Copies may be made available to clients to reinforce the obligation to maintain and foster these standards.
I. LAWYERS’ DUTIES TO OTHER COUNSEL AND THE
COURTS.
A. CIVILITY AND COURTESY
1. A lawyer should treat all counsel, parties, and witnesses in a civil and courteous
manner, not only in court, but also in all other written and oral communications. A lawyer should not, even when called upon by a client to do so, abuse or indulge in offensive conduct, disparaging personal remarks or acrimony toward other counsel, parties or witnesses.
2. A lawyer should not encourage or knowingly authorize any person under the lawyer’s control to engage in conduct that would be improper if the lawyer were to engage in such conduct.
3. A lawyer should not, absent good cause, attribute bad motives or improper conduct to other counsel or bring the profession into disrepute by unfounded accusations of impropriety.
4. Court sanctions should not be sought without first conducting a reasonable investigation and unless fully justified by the circumstances and necessary to protect the client’s lawful interests.
5. A lawyer should adhere to all express promises and agreements with other counsel, whether oral or written, and should adhere in good faith to all agreements implied by the circumstances or local customs. Where practical, such agreements should be reduced to writing.
6. A lawyer should endeavor to confer early with other counsel to assess settlement possibilities but should not falsely hold out the possibility of settlement as a means to adjourn discovery or to delay trial.
7. A lawyer should not ascribe a position to another counsel that counsel has not taken or otherwise seek to create an unjustified inference based on counsel’s statements or conduct.
8. Unless specifically permitted or invited by the court, a lawyer should not send copies of correspondence between counsel to the court. Counsel may copy the court when the correspondence does not contain material which would infer that counsel or witnesses have conducted themselves inappropriately.
B. CONDUCT AS TO DISCOVERY AND OTHER LEGAL MATTERS.
1. In civil actions, a lawyer should stipulate to relevant matters if they are undisputed and if no good faith advocacy basis exists for not stipulating.
2. A lawyer should not use any form of discovery or discovery scheduling as a means of harassment or to increase litigation expenses. Depositions should only be used when actually needed to ascertain facts or information or to perpetuate testimony.
3. A lawyer should make good faith efforts to resolve by agreement objections to matters contained in pleading and discovery requests prior to submission to the court for resolution.
4. A lawyer should not time the filing or service of motions or pleadings in any way that unfairly limits another party’s opportunity to respond.
5. Requests for an extension of time should not be made solely for the purpose of unjustified delay or to obtain a tactical advantage.
6. Other counsel should be promptly contacted regarding scheduling matters in a good faith effort to avoid scheduling conflicts and endeavor to accommodate previously scheduled dates for hearings, depositions, meetings or conferences.
7. A lawyer should notify other counsel and, if appropriate, the court and other interested persons, at the earliest possible time when hearings, depositions, meetings or conferences have to be canceled or postponed. When a trial is vacated by reason of settlement, or otherwise, counsel should notify all interested parties promptly.
8. A lawyer should agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided the clients’ legitimate rights will not be materially or adversely affected.
9. A lawyer should not cause any default or dismissal to be entered without first notifying opposing counsel, when the identity of such counsel is known.
10. A lawyer should not engage in any conduct during a deposition that would not be appropriate in the presence of a judge. This includes asking only those questions that are reasonably necessary for the prosecution or defense of an action and not obstructing or objecting to deposition questions unless necessary to preserve an objection or privilege for resolution by the court.
11. A lawyer should carefully craft a document production requests so they are limited to those documents reasonably believed to be necessary for the prosecution or defense of an action. Production requests should not place an undue burden or expense on a party.
12. A lawyer should respond to document requests reasonably and not strain to interpret the request in an artificially restrictive manner to avoid disclosure of relevant and non-privileged documents. Documents should not be produced in a manner designed to hide or obscure the existence of particular documents.
13. A lawyer should carefully craft interrogatories so they are limited to those matters reasonably believed to be necessary for the prosecution or defense of an action. Interrogatories should not be designed to place an undue burden or expense on a party.
14. A lawyer should respond to interrogatories promptly and reasonably and not strain to interpret them in an artificially restrictive manner to avoid disclosure of relevant and no-privileged information.
15. A lawyer should base any discovery objections on a good faith belief in their merit and should not object solely for the purpose of withholding or delaying the disclosure of relevant information.
16. When a draft order is to be prepared by counsel to embody a court’s ruling, the draft should accurately and completely reflect the court’s ruling. The draft order should be promptly prepared and submitted to other counsel. Objections to the draft order should be made promptly. A diligent attempt to reconcile any differences should be made before the draft order is presented to the court.
C. LAWYERS’ DUTIES TO THE COURT
1. A lawyer will speak and write civilly and respectfully in all communications with the court. A lawyer should not knowingly misrepresent, mischaracterize, misquote, or miscite facts or authorities in any oral or written communication to the court. Moreover, a lawyer should not write letters to the court in connection with a pending action, unless invited or permitted by the court. Whenever communication with the court is mandated, copies of the correspondence should be provided to all counsel.
2. A lawyer should be punctual and prepared for all court appearances so that all hearings, conferences and trials may commence on time. If delayed, a lawyer should notify the court and, if possible, opposing counsel.
3. A lawyer should be considerate of the time constraints and pressures on the court and court staff inherent in their efforts to administer justice, and should act and speak civilly to the court and all of its personnel with an awareness that they, too, are an integral part of the judicial system.
4. A lawyer should not engage in any conduct that brings disorder or disruption to the courtroom. Clients and witnesses appearing in court should be advised of the proper conduct expected and required. To the best of the lawyer’s ability, clients and witnesses should be prevented form creating disorder or disruption. If the lawyer anticipates a disorder or disruption problem with a client, the lawyer may wish to notify the court or its bailiff prior to the proceeding. If a lawyer anticipates a disorder or disruption problem with a witness, the lawyer should notify the court or bailiff prior to the proceeding; and should also do so if a client intends to commit serious bodily injury or damage to another’s property, as provided under Rule 1.6(b)(1) R.P.C.
5. Before dates for hearings or trials are set, or if that is not feasible, immediately after such date has been set, the lawyer will verify the availability of necessary participants and witnesses. The lawyer shall promptly notify the court of any problems involving attendance of such participants and witnesses.
D. LAWYERS’ DUTIES TO THE CLIENT
1. Lawyer’s primary responsibility is to the client. However, a lawyer is an officer of the court and has an independent duty to the judicial system which serves both the lawyer and the client.
2. A lawyer’s conduct is governed by the West Virginia Rules of Professional Conduct and by the rules of the courts before which the lawyer practices. A lawyer’s conduct is governed by the highest standards of courtesy, integrity, human decency and respect for the judicial system the lawyer serves. A client has no right to demand or expect the lawyer to violate those rules and standards.
3. A lawyer is obligated to provide competent representation to a client.
4. A lawyer is obligated to exercise diligence in the pursuit of the client’s interest.
5. A lawyer is obligated to be punctual in fulfilling all professional commitments.
6. A lawyer is obligated to be courteous, respectful and civil to parties, witnesses and other lawyers, to the court, and to the court’s staff.
7. A lawyer is obligated to demonstrate good faith in adhering to promises and agreements to other counsel and to cooperate with the court in the furtherance of the judicial process.
8. A lawyer is obligated to refrain from abusive, hostile, demeaning or offensive conduct toward others even if a client requests it.
9. A lawyer is obligated to remain uninfluenced by any ill feeling which may exist between litigants.
10. A lawyer has the ultimate responsibility to determine accommodations to be granted opposing counsel and is not obligated to accede to a client’s demands that the lawyer act in an uncooperative manner toward opposing counsel.
E. LAWYERS’ RESPONSIBILITY IN ADVERTISING
A lawyer must be aware of what is appropriate and what is inappropriate in regard to advertising. A lawyer who chooses to advertise must assure that such advertising complies with both the letter and the spirit of the applicable Rules of Professional Conduct and these standards.
II. JUDGES’ DUTIES TO LAWYERS AND OTHER
JUDGES.
A. JUDGES’ DUTIES TO LAWYER.
1. A judge should be courteous, respectful and civil to lawyers, their staffs, parties and witnesses. In this context, it is recognized that a judge must maintain control of court proceedings. Judges have both the obligation and the authority to ensure that litigation proceedings are conducted in a civil manner.
2. A judge should not question the integrity or professionalism of any lawyer because of clients whom, or that causes which, a lawyer represents. A judge should ensure that court personnel conduct themselves civilly toward lawyers, their staffs, parties and witnesses
3. A judge should not use hostile, demeaning or humiliating words in opinions or in written or oral communications with lawyers.
4. In scheduling all hearings, meetings and conferences, a judge should be considerate of time schedules of lawyers, parties and witnesses. A judge should be punctual in convening all trials, hearings, meetings and conferences; if delayed, counsel should be notified, as circumstances permit.
5. A judge should give issues in controversy deliberate, impartial and studied analysis and consideration and shall dispose of all judicial matters promptly, efficiently and fairly.
6. While endeavoring to resolve disputes efficiently, a judge should be considerate of the time constraints and pressures imposed on lawyers by the exigencies of their litigation practice, particularly when the lawyer has a prior commitment in another court.
7. A judge should recognize that a lawyer has a right and a duty to present a case fully and properly, and that a litigant has a right to a fair and impartial hearing. Within the practical limits of time, a judge should allow lawyers to present proper arguments and to make a complete and accurate record.
B. JUDGES’ DUTIES TO EACH OTHER
1. A judge should be courteous, respectful and civil in opinions, ever mindful that a position articulated by another judge is the result of that judge’s earnest effort to interpret the law and the facts correctly.
2. In all written and oral communications, a judge should abstain from disparaging personal remarks or criticisms, or sarcastic or demeaning comments about another judge.
3. A judge should endeavor to work with other judges to resolve scheduling disputes utilizing the Rules of Resolution of Court Scheduling Conflicts (see Editor’s Note). A judge should foster a spirit of cooperation toward the mutual goal of enhancing the administration of justice.
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