Utah Bar Journal

These professionalism standards seek to increase civility in the legal profession. They represent a move to a "higher standard" than is reflected in the ethical standards. These standards focus on an attorney's relationship to opposing counsel, courts, and the legal system.

How well does your conduct meet these standards? Listed below are twenty hypothetical situations that might be encountered by a litigator. These scenarios focus on the practice of securities law but would be applicable to most areas of practice. Each hypothetical is identified as representing either a plaintiff's or defense counsel's perspective. Once you have completed the quiz, turn to page 34 for the answers.

Professionalism Scenarios
1. Defendant: You represent a broker-dealer and one of its agents, a high volume producer being accused of not giving his clients the advantages of volume discounts available on mutual fund purchases. Plaintiff's counsel brought a similar claim against your client earlier this year and is expected to file more cases in the near future. The securities agent wants to send a message that you will embarrass any clients of this attorney so she will stop bringing these cases against the agent. The agent offers you a $25,000 bonus in your fee, out of his own pocket, if you embarrass the client. A private investigator tells you that if you can get the client's tax returns in discovery, he will find proof of tax fraud or refund his $10,000 fee. Can you request a copy of the client's tax returns? Can you use evidence of tax fraud at the trial to impugn the client's integrity and honesty?

2. Plaintiff: You have read studies in legal journals recounting the attributes clients most desire in their attorneys. Chief among these is that the attorney be like a pit bull - aggressive and relentless in pushing client cases. You know that a potential client who contacted you also is interviewing other attorneys to decide who to select. In your interview with the prospective client, you become convinced that the client has been wrongly defrauded. The client's funds were misappropriated by a stockbroker at a brokerage firm known for a scorched-earth litigation strategy. The potential client wants your assurances that, if selected, you will prosecute his claim in a manner that will gain every advantage possible. The client says that acceding to any requests for additional time or appearing friendly with opposing counsel will be interpreted as signs of weakness. What do you tell this prospective client?

3. Defendant: The preparation for your arbitration case defending a brokerage firm has been very contentious, due to conduct of plaintiff's counsel. It is now a month before the scheduled start of your week-long arbitration hearing. Plaintiff's counsel tells you the customer has rejected your settlement offer. You inform your client, who asks your advice. You tell the firm your supposition that plaintiff's counsel is trying to show his client that he is aggressive and may be hoping for punitive damages. You say that you doubt the attorney has accurately informed his client about the strength of your case. You explain that this attorney has a reputation for being unethical and interested only in money - all as a means of masking his lack of intelligence. Should you ask for a settlement meeting - insisting that the client be present - and deliver a letter in the presence of the client outlining your suspicions and pushing for a better settlement offer?2

4. Plaintiff: In a case alleging that a broker made unsuitable recommendations, your client tells you that when she expressed concern about a stock being purchased for her account, the broker acknowledged that the stock did not meet the profile for stocks the customer wanted. Nevertheless, the broker said it was a sure thing and pressured the client to acquiesce. The broker's answer denied this. Early in the case, you sent a settlement demand to the firm, outlining the misconduct by the firm and the broker, including this claim. The settlement response rejected many of the assertions in your settlement offer, but not this one. Are you now free to argue that the firm has admitted that this trade was unsuitable?

5. Defendant: Opposing counsel is two weeks late in providing discovery responses. Previously, counsel filed his response to a motion ten days late and rescheduled a deposition twice. You don't believe the justifications he has given. Is it appropriate to seek sanctions against the attorney?

6. Plaintiff: Three weeks after filing your lawsuit against a brokerage firm, in-house counsel for the firm calls expressing a genuine desire to settle, but wanting to see copies of letters from the broker to your client which are not in the firm's files. You agree to send this information and a settlement offer, but explain that you will not be able to send it for another two weeks. Nothing is said about filing an answer in the meanwhile. When the deadline passes for filing an answer (and no answer is filed), should you just move for default rather than sending a settlement offer? What duty do you owe your client?

7. Defendant: Both sides are working to develop a stipulation of undisputed facts. After you send a revised draft to opposing counsel, she calls to discuss wording changes she wants. You agree to make those changes. In drafting the new version, you suddenly remember one other fact that, if admitted, will save you the trouble of bringing in a witness. You include it and send the new draft to opposing counsel. Counsel signs the stipulation. Can you now tell your witness he is no longer needed?

8. Plaintiff: In a civil case, opposing counsel has moved to dismiss your case on statute of limitations grounds. At a hearing, the judge dismisses your case and asks opposing counsel to draft an order. You find a case showing the judge relied on an improper basis for her ruling and send it to opposing counsel before he submits his draft order to the court. He ignores your objection and hand-delivers his proposed order to the court, mailing you a copy the next day. Has opposing counsel acted unprofessionally?

9. Defendant: A deadline is looming to produce discovery to the other side. You are overwhelmed with deadlines in other cases and will not be able to meet the deadline. Earlier, you opposed a request for extension by opposing counsel so are reluctant to ask him for more time. Is it acceptable to ask for a settlement offer, to delay your discovery response deadline?

10. Plaintiff: In a case alleging sales of unsuitable securities to your client, opposing counsel asks you to stipulate that your client had purchased speculative stocks on previous occasions. Twelve years previously, your client had purchased one such stock, but you worry that this will receive too much emphasis at the arbitration hearing. Can you refuse to stipulate to this fact, reserving for the hearing your ability to put this isolated purchase in context?

11. Defendant: On the second day of an arbitration hearing, you find yourself eating lunch at the same restaurant as one of the arbitrators. You exchange pleasantries, then comment that it should be an interesting afternoon based on the expected testimony of your expert. Is there a problem?

12. Plaintiff: A forensic accountant working for the defendant contacts your client to ask for some of last year's tax forms. You write an angry letter to opposing counsel saying this was outside the scope of discovery permitted in this case and the contact should have been through you. Can you send a copy of this letter to the judge?

13. Defendant: At a local bar function, you are discussing case strategy with a trusted colleague. In your conversation, you discover that an attorney who is opposing counsel in cases you both have will be out of the country for two weeks on a family vacation. You already had granted opposing counsel an extension of time in responding to a previous motion and he promised not to request any further extensions. You still have one final discovery request to make before the hearing. What is the best strategy to use in timing your discovery request in light of what you learned about his vacation plans?

14. Plaintiff: A prospective client comes to you with a very strong case, where the broker just pleaded guilty for the conduct involving your client. The client is angry at the brokerage firm, but also distrusts lawyers, having heard that cases take too long and the attorneys appear too friendly to each other. He will hire you only on the condition that you get his permission before granting any extensions of time or stipulating to any facts. Do you agree to his request?

15. Defendant: Opposing counsel had set a deposition of your client at a time inconvenient for you and insisted it could not be changed because of other deadlines in the case. Later, when the other side identified a new hearing witness late in the process, you objected but were overruled. You do have the ability to depose the newly-identified witness. Are you obligated to contact opposing counsel before setting a date for the deposition?

16. Plaintiff: The attorney for the other side contacted you two weeks ago to say he will be representing the defendant. However, he has not filed an answer. It is now a week after his deadline for filing an answer and you qualify to seek default. Have you failed in a duty to your client by not seeking default immediately?

17. Defendant: You are counsel to a brokerage firm. The attorney representing a plaintiff has made a discovery request that your client provide copies of any e-mails from the firm to one of its stockbrokers (the plaintiff's broker) describing a sales contest that the plaintiff suspects existed at the firm. In response, you produce copies of every e-mail to or from this broker over a four-year period. Have you acted unprofessionally?

18. Plaintiff and Defendant: During a deposition of your client, is it acceptable to interject, after a question is asked, "if you know"? Is it permissible to require opposing counsel to frame her questions precisely, objecting to the form of the question?

19. Plaintiff: The opposing party propounds discovery requests asking for documents relating to your client's prior securities transactions in his personal investment account or a retirement account. Most of your client's prior transactions were in a trust account. Do you need to produce documents relating to transactions in the trust account?

20. Defendant: Your brokerage firm client wants you to contact the plaintiff's wife to ask what her husband said and thought at the time of the transactions in question. When you refuse, the brokerage firm's manager says he plans to call the wife himself. How should you respond?

1. Examples include: the Seventh Circuit, Florida Bar Trial Lawyers Section, Texas Lawyer's Creed, Central District of California, ABA Guidelines for Conduct and Lawyer's Duties to Other Counsel, San Diego County Bar Association's Civil Litigation Code of Conduct, Federal Bar Association Professional Ethics Committee's Standards for Civility in Professional Conduct, and the American Inns of Court Professional Creed.

2. Note: This is a trick question. The professionalism conduct at issue here relates to the client discussion described in this hypothetical, not to the possible meeting with the opposing party.