I co-wrote an "appellate lawyer's creed" in Texas back in the day, and I've also served on committees that write disciplinary rules, and the former always seemed duplicative and mushy, but they said that they were just rough guides, so, I thought, who cares.
A new article wants them to be clearer:
It is a well-settled and often-recited fact that lawyers are “officers of the court.” That title, however, is notoriously hortatory and devoid of meaning. Nevertheless, the Eleventh Circuit recently took the somewhat unprecedented step of utilizing the officer-of-the-court label to, in effect, sanction an attorney for the purportedly uncivil act of failing to provide defendant attorneys with pre-suit notice. While the author applauds the court’s desire to place greater emphasis on lawyer-to-lawyer collegiality as a component of officer-of-the-court status, the uncertainty the decision creates in terms of a lawyer’s role will potentially force litigators to compromise important client-centered duties. This Article argues that it would be preferable for courts to define sanctionable officer-of-the-court duties by reference to well-defined, existing procedural and ethical norms, thereby enhancing predictability and imbuing the label with much-needed substance.
The full article is here.
Agreed – always a balance, and often judgment is involved. The thing I worry about with these civility codes is saying “do good” doesn’t help much and, in hindsight, what is “good” or not is often clearer than it was at the time.
Yikes. What was the main villainy of Pearl Harbor? That they attacked us or that they attacked us without warning?
A day that will live in infamy…
But it remains that the attack would not have been successful had there been a warning.
In litigation, there are circumstances where the evidence can be “lost” if the action is not filed without notice. There was a major trade secret case here in Silicon Valley some years ago wherein the sheriff searched the mis-appropriator’s computer and e-mails without prior notice and discovered the fact that he had been supplying company secrets to his “new” employer.
But is the same true of patent infringement? I don’t know. Close question.
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