Zealous Advocacy vs. Improper Conduct in the Adversarial System

Zealous Advocacy vs. Improper Conduct

Introduction

  • Understanding the distinction between zealous advocacy and improper conduct is crucial in the adversarial system.
  • Today's discussion focuses on defining the line between these two concepts in pretrial litigation.

Model Rules and Professional Conduct

  • Model Rule 3.4(d): Defines the limits of zealous advocacy in pretrial litigation.
    • Imposes mandatory duties on both parties seeking and responding to discovery.
  • Model Rule 8.4(d): Professional misconduct includes conduct prejudicial to the administration of justice.

Case Law and Sanctions

  • Much of the understanding of improper conduct comes from case law applying rules of civil procedure or inherent judicial power to impose sanctions.
  • Notable cases:
    • Fabiano Shoe Company
    • Masseo versus Gibbons
    • These cases provide examples of conduct that can lead to sanctions.
  • Analyze the specific actions the lawyers took in these cases that were deemed wrong.
  • Lawyers often defend their conduct as zealous advocacy.

Defining the Line

  • The key question: Where is the line between zealous advocacy and conduct prejudicial to the administration of justice (referencing Model Rule 8.4(d))?
  • The answer is subjective; what is “prejudicial” is vague.

Reality of Enforcement

  • Courts often do not adequately police or control misconduct, leading lawyers to take chances.
  • Even in cases like Mazeo and Fabiano, sanctions are often limited to warnings.
  • Financial sanctions, if imposed on lawyers, are often insufficient to deter misconduct.
  • Verbal warnings are unlikely to be effective.
  • Effective deterrence requires significant sanctions and disciplinary action from state regulators.
  • There are some recent examples of courts and agencies taking stronger action, but more is needed.

Proper Conduct During Pretrial Litigation

  • During discovery, lawyers can object to preserve the objection for trial.
  • Objections do not halt discovery unless based on privilege.

Handling Misconduct During Pretrial Litigation

Written Discovery

  • Easier to handle as it is not face-to-face.
  • Response options:
    • Negotiate with the other side.
    • File a motion asking the court to intervene.

Live Deposition

  • More challenging due to the immediate, face-to-face nature.
  • Initial approach: Ignore the misconduct and continue with the deposition.
  • If misconduct is intended to upset the lawyer or witness:
    • Option 1: Call the judge for immediate help (if available and willing).
    • Option 2: Decide whether to continue the deposition and file a motion later, or end the deposition.

Redwood v. Dobson Case

  • In Redwood v. Dobson, the court found that the defending lawyer acted improperly by telling the client not to answer questions, despite the questioning lawyer's misconduct.
  • The defending lawyer cannot instruct the client to refuse to answer questions, regardless of the questioning lawyer's behavior.
  • Alternative actions:
    • Seek help from the judge.
    • Terminate the deposition.

Proper Response to Misconduct

  • The court suggests ending the deposition and rescheduling after obtaining a ruling from the court.
  • Many lawyers may find this impractical due to increased work and costs.
  • Alternative approach:
    • Create a record of objections.
    • Allow the deposition to continue as much as possible.
    • Address unresolved objections with the court later.