Ethics Question of the Month June 2024

If You Can’t Say Something Nice. . .

Are there limits on what attorneys can say about opposing counsel in the courtroom?

The Situation

Attorneys Amy and George are opposing counsel in a litigation matter. At a heated pre-trail hearing, George responds to an argument by Amy by making a derogatory remark about women attorneys, saying that women are more prone to getting emotional during court hearings. Amy responds by making a negative reference to George’s age, noting that he uses a cane and suggesting that attorneys of his advanced years are incapable of dealing with the fact that the legal profession is no longer dominated by men.

The judge continues the hearing without addressing this exchange. As the hearing continues, Amy and George generally restrict their remarks to the substantive issues but do exchange similar barbs a couple more times. The judge does not address these remarks, either.

Some attorneys who were in the courtroom and who witnessed the hearing were troubled by the exchange. It becomes a topic of discussion among members of the local bar, with some arguing the incident should be reported, while others believe that no ethics rules were violated.

The Question

Who, if anyone, violated their ethical obligations under the applicable rules?

The Correct Answer is E Of 14 Responses, 50% are correct.

  1. A 0
  2. B 0
  3. C 2
  4. D 4
  5. E 7
  6. F 1

The Explanation

Rule 5.08 of the Texas Disciplinary Rules of Professional Conduct states:

(a) A lawyer shall not willfully, in connection with an adjudicatory proceeding, except as provided in paragraph (b), manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.

(b) Paragraph (a) does not apply to a lawyer's decision whether to represent a particular person in connection with an adjudicatory proceeding, nor to the process of jury selection, nor to communications protected as confidential information under these Rules. See Rule 1.05(a),(b). It also does not preclude advocacy in connection with an adjudicatory proceeding involving any of the factors set out in paragraph (a) if that advocacy:

(i) is necessary in order to address any substantive or procedural issues raised by the proceeding; and

(ii) is conducted in conformity with applicable rulings and orders of a tribunal and applicable rules of practice and procedure.

George clearly violated Rule 5.08 by making biased statements about Amy and women attorneys in general. Likewise, Amy violated the same rule by exhibiting her bias toward George due to his age and apparent disability.

While the judge made no statements manifesting bias[i], the Texas Code of Judicial Conduct does set forth certain obligations for judges in this situation. Canon 3(B)(7) states:

A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others. This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.

Here, the judge witnessed both lawyers make biased statements about the other during the hearing but did not take any steps to stop it or require them to refrain from doing so, violating Canon 3(B)(7). The best response is E.

Bluebook Citation

If You Can’t Say Something Nice. . .: Ethics Question of the Month - June 2024, Texas Center for Legal Ethics (2024), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-june-2024/ (last visited Jun 16, 2024)