Recently, I had a minor disagreement with opposing counsel. It was nothing of any significance, but I had my attention drawn to the Texas Lawyer’s Creed. My first impression was that neither opposing counsel nor I were living up to the standards set forth in the Creed. After doing my best to apologize for my part in our disagreement, I sat down and read through the entire Creed, which can be viewed HERE.
Before I read the Creed for the first time in many years, I would have told you that I am the type of lawyer that naturally follows the Creed. I do not need to be told that I owe opposing counsel “courtesy, candor, cooperation and scrupulous observance of all agreements and mutual understandings.” I do not need to be reminded that “my word is my bond.” That all goes without saying. However, reading through the Creed, I am reminded that the bar is set quite a bit higher, as it should be. I must admit that I had forgotten some of the finer points, and I found a few that I think deserve mentioning. Here are a few things we should all remember in the future:
Section I. Our Legal System
(4) – I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
[Now you can see why I felt it necessary to write this article.]
Section II. Lawyer to Client
(1) I will advise my client of the contents of this creed when undertaking representation.
(4) I will advise my client that civility and courtesy are expected and are not a sign of weakness.
[I must admit to having this conversation with a few of my more enthusiastic clients over the years. Generally, if I am having this conversation with a client, things are not going well. The same is true of the next couple of sections.]
(5) I will advise my client of proper and expected behavior.
(6) I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
(7) I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
(8) I will advise my client that we will not pursue tactics which are intended primarily for delay.
Section III. Lawyer to Lawyer
(1) I will be courteous, civil, and prompt in oral and written communications.
[I believe that I follow this one on a general basis, but I tend to respond poorly when other attorneys fail to be courteous, civil, and prompt. I find it odd how rarely attorneys respond promptly, especially given the number of deadlines involved in our profession.]
(6) I will agree to reasonable requests for extensions of time and for waiver of procedure formalities, provided legitimate objectives of my client will not be adversely affected.
[While I am always quick to provide an extension, I only ask for an extension when it cannot be avoided. It is so rare to have an opposing party respond to discovery by the original deadline. I wish it would happen more often.]
(10) I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties, and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
[Amen. Assuming all attorneys follow the Creed, there should never be “good cause” to attribute bad motives or unethical conduct to opposing counsel. When I first started practicing, I saw conspiracies and gaming in every move my opponents made. That is the path to insanity. I now do my best to attribute reasonable and benign motives to my adversary’s actions. Sometimes I have good cause to attribute bad motives or unethical conduct, but such instances are rare.]
(13) I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
[If it is your habit to copy the court on correspondence, please disregard what I am about to write. I absolutely loath the practice of copying the court on a correspondence involving a dispute over discovery. Please do not be that kind of attorney.]
(14) I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
[I must take exception to this one. While I will always make an effort to schedule a deposition by agreement, I rarely contact opposing counsel before scheduling a court appearance or hearing. Assuming I have followed all of the other tenants of the Creed, I have made every effort to avoid involving the court in whatever dispute needs to be resolved at a hearing. If the motion has to be filed, I am not eager to call opposing counsel back and coordinate our schedules. I will strive to do better in the future.]
(19) I will not seek sanctions or disqualification unless it is necessary for protection of my client’s lawful objectives or is fully justified by the circumstances.
[The fastest way to get on my bad side is to threaten me with a motion for sanctions. As you have read, I always assume the best in opposing counsel; we are just doing our jobs. I also do not file lawsuits or seek discovery without first giving serious consideration to the justness of my cause, as required by the Creed. Therefore, it really aggravates me when an attorney suggests that my actions are deserving of a sanction. I do not mind if opposing counsel does not like what I have done, and I am okay if he/she is angry at first. However, I find it insulting when opposing counsel suggests that I may have done something so unethical to warrant sanctions. Please do not be that kind of attorney.]
Section III. Lawyer and Judge
(1) I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
[I must confess that I have failed to meet this standard on more than one occasion. I find confidence in reminding myself that our elected judges are men and women who once practiced law before judges; they have once stood in my shoes. While this is a great way to prepare for a hearing or a trial, keeping my nerves in check, such a strategy has to be tempered by the understanding that the judge represents an ideal. I have heard more than once, “You solute the rank, not the man.” In much the same way, I remind myself that I must be humble before the bench.]
(4) I will be punctual.
[In high school, my band director required us to show up for concerts at least 30 minutes early. If we were not 45 minutes early, we were marked as tardy. He would say, “To be early is to be on time. To be on time is to be late.” I have lived by that motto ever since. Of course, there are always circumstances that may prohibit me from being on time. In those rare situations, I am always prepared to contact the court coordinator and explain why I am running late and when I hope to be before the court.]
I hope this brief, annotated, refresher of the finer points of the Texas Lawyer’s Creed proves beneficial to your practice, if you are a lawyer, or educational, if you are a layman. Please add to the discussion in the comments section below.
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