Standard 20 - Just Doing the Right Thing
by Judge John Baxter
Lawyers shall not authorize or encourage their clients or anyone under their direction or supervision to engage in conduct proscribed by these Standards.
"Remove all antitrust materials."
The bright yellow sticky note stared back at me. I was a contract hire, just out of law school and engaged as a discovery mole in a multi-district, multi-plaintiff, multi-defendant, class action and individual plaintiff lawsuit. My colleagues and I had spent literally weeks at the headquarters of major national companies and at the offices of the international law firms who represented them, sifting through box after box - thousands of them - of seemingly irrelevant material seeking documents relating to, you guessed it, an antitrust lawsuit. And here it was, the reason we were not finding much. Someone in authority had instructed someone else to, "Remove all antitrust materials."
Interesting, maybe, you say but just what does that have to do with the Utah Standards of Professionalism and Civility? Let's start at the very beginning. Standard 1: "Lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner." (Emphasis added.) Without addressing potential civil discovery violations, even in an adversarial system with extraordinary emphasis on winning outcomes, professional and honest behavior must govern lawyers' actions. Cheating by altering, deleting or withholding records or leading others to do so in the name of winning is still cheating. More broadly, any behaviors encouraged by an attorney seeking to deliberately and unfairly alter the course or outcome of a lawsuit by engaging in conduct proscribed by these Standards fails to recognize our duty to engage our adversary with the courtesy and dignity necessary to resolve disputes in a civilized manner.
Standard 6 is about taking your professional adversary at her word, that a promise is a promise. In the scenario I describe above, although I never reviewed the pleadings files, it is reasonable to assume that the federal court supervising the proceedings had extracted certain stipulated promises from the attorneys. For those circumstances where the attorneys were not able to reach an agreement, it is reasonable to assume that the court had ordered compliance. Among the promises or orders, it is again reasonable to assume that the parties were to have access to relevant material through the discovery process. Making promises to each other or promising to comply with orders and then hedging by extracting relevant material by subterfuge is to break the promises made. I do know that in my case, several hearings were held to sort out discovery issues drawing lawyers from across the country and expending substantial court and client resources, all unnecessary if the attorneys had simply, "Adhered to their express promises and agreements . . . and all commitments reasonably implied by the circumstances."
Standard 17 proposes that we use discovery properly as a tool, not as a weapon. Sometimes the use of a tool is burdensome, a fact to which anyone who has handled the business end (where the hands meet the handle) of a pick axe can attest. But it may still be the right tool for the job. On the other hand, the pick axe is ideal for hard ground but potentially lethal if misused. That the discovery process can be difficult and complex, presenting any number of opportunities for abuse, does not justify its use as a weapon. That it is sometimes used as a weapon to harass or to burden an opponent is illustrated in my case by the fact that apparently at least one of the boxes of documents we reviewed had been sanitized at the behest of an authority figure. It's not unreasonable to conclude that more than one box had been edited. Although the case had one set of rich corporations suing another set of rich corporations, parties for whom sympathy may be scarce, someone went to the effort to ensure that at least some of our work was not productive for whatever purposes, presumably including escalating the cost of litigation. The question remains: how much more quickly, and for how much less expense would settlement have been reached had counsel viewed and used discovery as a tool rather than a weapon.
Finally, Standard 19 is about what I will call "cleverness" in lawyering. We have all seen it. The clever, narrowly drafted and construed wording of agreements, draft orders and proposals (among other things) which purports to meet a particular need yet allows sufficient weasel room to avoid meeting the real intent of the words. Paraphrasing the language of the Standard, lawyers do from time to time respond to discovery requests in a manner so as to avoid disclosure of relevant materials. It is the stuff of lawyer jokes and real world disdain for the profession. I have no doubt that had someone on my side in my case become hopping mad at the "Remove all antitrust materials" note and dragged everyone into court, some "clever" opponent would have made a good faith and good-sounding argument that, in spite of appearances, the response to the discovery demand was not only sufficient but generous. Artificial "cleverness" may create billable hours, but it may also add costs for the client and consume court time as a judge struggles to discern the meaning of less than plain language to arrive at decisions which will move a case toward resolution.
Although I have discussed a view of the application of Standard 20 through the narrow lens of a single possible discovery violation, many of us have had clients ask us about whether they should avoid going to court, attempt to unnecessarily delay a case, lie as a witness, or hide assets. This list is not exhaustive. It is only provided to remind us that the opportunity to advise others to not engage in conduct proscribed by these Standards may rise at virtually any time and in any context. Other Standards of Professionalism and Civility may apply. It is after all, in the end, quite simply about just doing the right thing.