September 2007

RPC 3.5 (Decorum of the Tribunal)

CIVILITY IN THE GOOD ‘OL DAYS: WAS THERE REALLY LESS YELLING?

BY PHIL PATTEE, ASSISTANT BAR COUNSEL

We hear it all the time, and so do you.

Remember the good ol’ days, when a lawyer’s word was gold.  A handshake resolved a conflict.  Signed documents were a formality.

The legal community was small, even in Las Vegas, and its members were civil to each other and the judiciary.  Sure, old Fred might blow off some steam, but he’s just a cantankerous-old-coot who means well and works hard for his clients.

Strangely, most Nevada attorneys remember the good old days as not that long ago.  Even in booming Las Vegas, lawyers licensed for longer than two presidents claim to recall better times when they first entered practice.  For those in Reno, Carson City and the rural counties, it seems that things went bad more recently.

Maybe it’s always been this way.  The past is recalled with fondness.  What’s the world coming to?  The older I get, the better I was. 

But more and more, attorneys are complaining about less-than-desirable behavior by fellow attorneys.  At the State Bar, we hear about lawyers yelling on the telephone, yelling at depositions, and yelling outside the courthouse.  In recent years we’ve even had attorneys fighting outside the courthouse.

“Civility” is becoming a catch phrase and a topic of discussion in Nevada’s legal community and, actually, throughout the country.  The two-part question asks:

1.               Where do we draw the line between advocacy and inappropriate behavior?

2.               What do we do about it?

In Nevada, there is no specific ethical rule requiring attorneys to act in a civil manner to each other.  Supreme Court Rule 73 (Attorney’s Oath) includes language requiring an attorney to “maintain the respect due to courts of justice and judicial officers.”  However, there is no equivalent in the Rules of Professional Conduct regarding attorney-to-attorney interaction.

Over-the-top lawyers can, and occasionally do, get into trouble when their outbursts actually occur inside a courtroom.  Rule of Professional Conduct 3.5 (Impartiality and Decorum of the Tribunal), formerly Supreme Court Rule 174, prohibits attorneys from conduct intended to disrupt a tribunal.

An attorney, of course, presumably could claim that his or her antics were not intended to disrupt the court.  But that defense might fall upon deaf ears, especially if the court just placed you in handcuffs.  

For a physical or verbal disruption to violate RPC 3.5(d), formerly SCR 174(c), it must occur inside a courtroom.¹  Although activity outside the actual courtroom currently would not qualify as a disruption that would violate RPC 3.5(d), testing the waters is not advisable.  It’s conceivable that such outside-the-court conduct could lead to an expansion of the current rule, and the offending attorney’s name might be in the caption of a Nevada Supreme Court decision. 

Having a legal doctrine named after you is rarely a good thing.

If the lack of civility among lawyers bothers you, try to do something about it.  Ask your judge or discovery commissioner to sanction the offending lawyer, but do it quietly and only if you’ve been playing nicely.

And if you’re the attorney that everybody’s complaining about (and you know if you are), please try to tone it down.  Remember, the legal community might begin to think that you have competency issues.  Nevada does have professional rules regarding those.   

FOOTNOTES FOR TIPS FROM BAR COUNSEL:

1 108 Nev. 629, 837 P.2d 853 (1992).