Here’s a risk management pro tip: if the judge in your case suggests you are slinging mud and engaging in schoolyard antics, it’s not a good sign.
It’s even worse if the judge warns if you keep it up, you might face disciplinary sanctions.
Consider the case of Peterson v. Pickering, a federal civil proceeding in Colorado, where in a May 18 order, the presiding judge scolded counsel on both sides of the aisle for what he described as a “disturbing trend” in their conduct.
“Litigation by its nature involves some conflict, but counsel has taken this to the extreme,” according to the order. “Attorneys are officers of the court and expected to recognize the vast gulf between zealous advocacy and recalcitrance.”
Among the objectionable behavior cited by the court:
- The lawyers “repeatedly accused each other of acting inappropriately, thereby further escalating tensions.”
- The lawyers did not meet and confer in good faith.
- Describing one email exchange between counsel, the judge said he was “struck by the contentiousness and the aggressively personal nature” of the communications.
- From the order: “[T]he court can only conclude that this unbecoming exchange is the lawyerly equivalent of the familiar schoolyard refrain, ‘I know you are but what am I?’ Counsel should not have to be reminded that this proceeding is not the playground.”
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NC Rule of Professional Conduct 3.5
Impartiality and Decorum of the Tribunal
(a) A lawyer representing a party in a matter pending before a tribunal shall not:
(1) seek to influence a judge, juror, member of the jury venire, or other official by means prohibited by law;
(2) communicate ex parte with a juror or member of the jury venire except as permitted by law;
(3) unless authorized to do so by law or court order, communicate ex parte with the judge or other official regarding a matter pending before the judge or official;
(4) engage in conduct intended to disrupt a tribunal, including:
(A) failing to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving opposing counsel timely notice of the intent not to comply;
(B) engaging in undignified or discourteous conduct that is degrading to a tribunal; or
(C) intentionally or habitually violating any established rule of procedure or evidence; or
(5) communicate with a juror or prospective juror after discharge of the jury if:
(A) the communication is prohibited by law or court order;
(B) the juror has made known to the lawyer a desire not to communicate; or
(C) the communication involves misrepresentation, coercion, duress or harassment.
(b) All restrictions imposed by this rule also apply to communications with, or investigations of, family members of a juror or of a member of the jury venire.
(c) A lawyer shall reveal promptly to the court improper conduct by a juror or a member of the jury venire, and improper conduct by another person toward a juror, a member of the jury venire, or the family members of a juror or a member of the jury venire.
(d) For purposes of this rule:
(1) Ex parte communication means a communication on behalf of a party to a matter pending before a tribunal that occurs in the absence of an opposing party, without notice to that party, and outside the record.
(2) A matter is “pending” before a particular tribunal when that tribunal has been selected to determine the matter or when it is reasonably foreseeable that the tribunal will be so selected.
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