Standard 12
by Fran Wikstrom
Previous articles have discussed Standards that encourage lawyers to maintain civility in their written communications. When committing oral understandings to writing, lawyers should do so accurately and completely. (Std. 7) Letters should not attribute "improper motives" to an opponent. (Std. 3) They should not contain "hostile, demeaning, or humiliating" language, nor should they "disparage the integrity, intelligence, morals, ethics or personal behavior of an adversary." (Id.) Lawyers should not use written communications to "attribute to other counsel a position or claim that counsel has not taken," or to "create an unjustified inference," or to "create a 'record' that has not occurred. (Std. 4)
If a lawyer should be the author or recipient of improper, hostile, or disparaging correspondence, Standard 12 counsels her not to make a bad situation worse by bringing it to the attention of the court. Standard 12 provides:
Lawyers shall not send the court or its staff correspondence between counsel, unless such correspondence is relevant to an issue currently pending before the court and the proper evidentiary foundations are met or as such correspondence is specifically invited by the court.
The appropriate way to communicate with the court is by motion, not by letter. In rare instances, correspondence from opposing counsel may be attached as an exhibit to a motion. For example, counsel may have admitted certain facts in a letter that are relevant to a motion for summary judgment. Here, the letter has independent evidentiary significance because it is an admission by a party opponent. Alternatively, correspondence evidencing an offer and acceptance of a settlement agreement between counsel may be relevant to a motion to enforce the settlement.
If the purpose of attaching a chain of correspondence is only to demonstrate that opposing counsel is unreasonable or behaving badly - it shouldn't be done. Even if a lawyer feels himself the victim of hostile correspondence, the court likely will not react with the same level of umbrage. More importantly, filing this type of correspondence does not generally advance a client's cause. Judges don't like to get involved in these kinds of issues and both sides usually suffer when the court is forced to do so.
A good rule of thumb is for the lawyer to imagine herself at a hearing before the court and to ask herself if the letter would be admissible as an exhibit relevant to the purpose of the hearing. If the answer is yes, there should be no problem attaching it as an exhibit to the motion or memorandum. If no, do not attach it. If in doubt, she should seek permission from the court.