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“WHAT WOULD ATTICUS DO?”TOP 10 ETHICAL MISTAKES FAMILY LAWYERS MAKE

JOAL CANNON SHERIDANAusley, Algert, Robertson & Flores, L.L.P.

3307 Northland Drive, Suite 420Austin, Texas 78731

(512) [email protected]

State Bar of Texas34 ANNUAL MARRIAGE TH

DISSOLUTION INSTITUTEApril 28-29, 2011

Austin

CHAPTER 7

JoAl Cannon SheridanAusley, Algert, Robertson and Flores, L.L.P.

3307 Northland Drive, Suite 420Austin, Texas 78731

(512) 454-8791(512) 454-9091 fax

[email protected]

Education: University of Texas at Austin, B.A. with honors, 1989Baylor Law School, J.D., 1992 (Top 20%)

Licensure: Texas Supreme Court (1992)Board Certified in Family Law by the Texas Board of Legal Specialization

Employment: Partner-- Ausley, Algert, Robertson and Flores, L.L.P., January 2008 to presentFormer Briefing Attorney for Hon. Joe Draughn, 14th Court of Appeals, Houston

(1992-1993)

Areas of Practice: Family Law

Professional Activities and Honors:*Baylor Law School 2004 Young Lawyer of the Year *Recognized as a Texas Rising Star by Texas Monthly and Law & Politics Magazines (July

2004)*Recognized as a Texas Super Lawyer by Texas Monthly and Law & Politics Magazines (2004,

2005, 2006, 2007, 2008, 2009 and 2010)*Outstanding Third Year Director, SBOT Board of Directors (2001)*SBOT Presidential Citation and Award of Merit (2001 and 2004)*Director, State Bar of Texas Board of Directors (1998-2001)(youngest ever elected);

Chair, SBOT Board Legislative Policy CommitteeChair, SBOT Board Legal Services CommitteeVice-Chair, SBOT Board Grievance and Disciplinary System Oversight Comm.Member, Audit and Finance CommitteeSpeaker, New SBOT Director Orientation

*Director, Board of Disciplinary Appeals (2008-2011)(Vice-Chair, 2009-2011)*Trustee, Texas Bar Foundation (2007-2010; Executive Committee 2010)*Officer Track/Treasurer, Texas Family Law Foundation (2010-2016)*Trustee, Texas Family Law Foundation (2008-2011)*President, Baylor Law School Alumni Board (2009-10)*Member/Director, Family Law Section Council (2001-2011)

-Committees–Legislative, State Bar, Member Services, Pro Bono*Member, District 2A Grievance Committee, State Bar of Texas (2003-2009)*CLE Planning Committee, SBOT Family Law Advanced Course (2004, 2010; New Frontiers

2006, 2007; Marriage Dissolution, 2007; UT Family Law on the Frontlines, 2008, 2009;UT Parent-Child Course, 2010)

*CLE Speaker/Author, “Hots Tips on Hot Topics–Trusts,” New Frontiers in Family Law Course,October 2010

*CLE Speaker/Author, “It’s a Family Affair–Representing Relatives,” Advanced Family LawCourse 2010

*CLE Speaker/Author, “Top 10 Tips for Settling and Negotiating Child Support,” SBOT AnnualMeeting CLE, Family Law Track, June 2010

*CLE Speaker/Author, “Follow the Yellow Brick Road–Jurisdiction and Venue, SBOT MarriageDissolution 2010)

*CLE Speaker/Author, “Jurisdiction Jeopardy,” SBOT Advanced Family Law Course 2009*CLE Speaker/Author, “What Would Atticus Do?–Top 10 Ethical Mistakes Family Lawyers

Make,” UTCLE Family Law on the Frontlines, June 2009*CLE Speaker/panel, “Legislative Update,” UTCLE Family Law on the Frontlines, June 2009*Course Director, SBOT Advanced Family Law Drafting Course, December 2008;

*CLE Speaker and Author, “Difficult Child Cases,” SBOT Advanced Family Law Course,August 2008

*CLE Speaker, “Representing and Defending Against the Impaired Client, UTCLE Family Lawon the Frontlines, June 2008;

*CLE Speaker and Author, “Discovery Grab Bag,” SBOT Advanced Family Law Course August2007;

*CLE Speaker and Author, “Divorce Beyond Hate,” SBOT Marriage Dissolution Institute, May2007;

*CLE Speaker and Author, “Digging Up Alcatraz: Revisiting The Rocks of Common Law andUncommon Claims (Reimbursement), SBOT New Frontiers in Marital Property Law,October 2006

*CLE Speaker and Author, “Nobody’s Doin’ What They’re S’posed To–Enforcing ChildSupport and Possession Orders,” SBOT Advanced Family Law Drafting Course, August2006

*CLE Speaker and Author, “Sleeping With the Enemy–Domestic Violence and ProtectiveOrders,” SBOT Advanced Family Law Drafting Course, December 2005

*CLE Speaker and Author, “Here’s Hopi The Marriage Lasts–Protecting Separate PropertyThrough the Use of FLP’s, Corporate Structures and Trusts,” SBOT New Frontiers inMarital Property Course, October 2005

*CLE Speaker and Author, “Avoiding Getting Cross With Your Cross Client,” Advanced FamilyLaw Seminar, August 2005

*CLE Speaker and Author, “The Best Defense is a Good Offense: Defending ModificationsWithout the Third Prong,” Advanced Family Law Seminar, August 2004

*CLE Speaker and Author, “Sex, Drugs, and Body Piercing-Bad Facts in Custody Cases, Bothfor Ya and Against Ya,” Advanced Family Law Seminar August 2003

*Panel member, ‘Custody Cases,’ Advanced Family Law Seminar, August 2003*CLE Speaker and Author, “Managing the File,” Advanced Family Law Seminar August 2002*CLE Speaker, “New Millennium Ethics for the Small Town Practitioner,” Navarro County Bar

Association, August 2001*CLE Speaker on Ethics, Local Bar Leaders Conference Las Colinas, Texas August 2000*Keynote speaker on Family Law, RACA conference, April 2007*Voted “Jacksonville’s Favorite Attorney,” Jacksonville Daily Progress 2004

COMMUNITY HONORS/ACTIVITIES*Member, St. Johns United Methodist Church, (Chancel Choir, Handbells, Trinity Singers,

Passionate Worship Committee) (July 2008 to present)*Member, Courtyard Tennis Club “Game On” and “Tequila Shots” Tennis League Teams (4.0

and 8.0 Mixed)*Member, Jacksonville Tennis League Teams (3.5 and 4.0)*Advisor, Boy Scout Law Explorer Post (co-ed) 1995-2000*Certified Dive Master (professional level) and Rescue Diver**Specialty Certification–Shark Diving and Education (Grand Cayman, B.W.I.)*Member, United States Tennis Association (current rating–4.0)

-Quarter-finalist, 2005 National Mixed Doubles Championship (3.0)

Acknowledgments

Many thanks to Ann Young in our office who took the time to review and edit this article and makeme sound better than I really am. Many thanks also to Kelly Caperton, a lawyer in our office for herpriceless assistance on the power point presentation provided at the seminar. And, as always, love andgratitude to my father, Joe Cannon, who is a present-day, living, “Atticus Finch.”

“What Would Atticus Do?” Chapter 7

TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. “THE RULES”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. The Texas Lawyer’s Creed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B. The Texas Disciplinary Rules of Professional Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Client-Lawyer Relationship (or “How We Treat our Clients”). . . . . . . . . . . . . . . . . . . . . . . . 32. Lawyer-to-Lawyer Relationship (or “How We Treat Each Other”). . . . . . . . . . . . . . . . . . . . 33. Lawyer-to-Tribunal Relationship (or “How We Treat the Judge”). . . . . . . . . . . . . . . . . . . . . 34. Lawyer and Third Party Relationships (or “How We Treat Those Outside of the Legal3

Relationship). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35. Lawyer and Pro Se Party Relationships. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. TEN MOST COMMON ETHICAL MISTAKES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A. Lying and Cheating (“The ‘Duh’ Rule). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B. Conflicts of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Prior Representation of Adverse Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42. Attempting to Represent/Mediate for both parties in an informal arrangement. . . . . . . . . . . . 53. Personal interest in case and/or outcome. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Fee Arrangements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5D. Lack of Communication With Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6E. Negative Comments About Opposing Counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7F. Negative Comments About the Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7G. Implying Special Relationship With Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7H. Ex Parte Communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7I. Failure to Withdraw When Warranted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8J. Obligations Regarding the Client’s File. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8K. Use/Abuse of Social Media. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

IV. THE GRIEVANCE PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

V. PEARLS OF WISDOM - “BECAUSE NICE MATTERS”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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TABLE OF AUTHORITIES

Texas Disciplinary Rules of Professional Conduct, Texas Rules of Court–State, (Vernon’s Ann.)

Texas Rules of Disciplinary Procedure, Texas Rules of Court–State, (Vernon’s Ann.).

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“WHAT WOULD ATTICUS DO?”

TOP 10 ETHICAL MISTAKES FAMILY

LAWYERS MAKE

I. INTRODUCTIONThis article is intended to remind us all of the most

common ethical mistakes family lawyers make, and howwe can avoid making them. Some of the mistakes are“no-brainers.” Others are much more subtle and canoccur even when a lawyer is a genuinely good person withno ill intention or motive, but who may not be as familiarwith the specifics of the rules as maybe he/she should be.

This article is not intended to be a self-righteous,“holier-than-thou” diatribe, but I hope it will achieve thewell-intended task of reminding us of the rules, andreinforcing the basics of what we already know.

II. “THE RULES”It is impossible to determine whether a lawyer has

violated the rules unless we know what the rules are. Inaddition to the Texas Lawyers Creed, or as I like to referto it, “The Golden Rule for Lawyers,” there are two mainsets of rules under which Texas lawyers must practice. Those are: (1) The Texas Rules of Professional Conduct;and (2) The Texas Rules of Disciplinary Procedure. Thispaper will focus primarily on the former, as the Rules ofDisciplinary Procedure relate mostly to the process thatapplies once a grievance has been made and the availablepenalties for violating the Rules of Professional Conduct. As one will never have to worry about Number 2 if shedoes not violate Number 1, an understanding of what isrequired is the focus of this article.

A. The Texas Lawyer’s CreedThe Texas Lawyer’s Creed is, simply put, the

Golden Rule as it applies to lawyers in their day to daypractices. The entire creed is too voluminous to reprinthere, but it may be viewed in its entirety at http://www.txethics.org/index.aspx.

It may also be found in Vernon’s Texas Rules ofCourt-State. However, for purposes of the discussionfollowing later in the paper, the portion regarding“Lawyer to Lawyer” is set forth below.

“A lawyer owes to opposing counsel, in the conductof legal transactions and the pursuit of litigation, courtesy,candor, cooperation, and scrupulous observance of allagreements and mutual understandings. Ill feelingsbetween clients shall not influence a lawyer’s conduct,attitude, or demeanor toward opposing counsel. A lawyershall not engage in unprofessional conduct in retaliationagainst other unprofessional conduct.

“1. I will be courteous, civil, and promptin oral and written communications.2. I will not quarrel over matters of formor style, but I will concentrate on mattersof substance. 3. I will identify for other counsel orparties all changes I have made indocuments submitted for review.4. I will attempt to prepare documentswhich correctly reflect the agreement ofthe parties. I will not include provisionswhich have not been agreed upon or omitprovisions which are necessary to reflectthe agreement of the parties.5. I will notify opposing counsel, and, ifappropriate, the Court or other persons, assoon as practicable, when hearings,depositions, meetings, conferences orclosings are cancelled.6. I will agree to reasonable requests forextensions of time and for waiver ofprocedural formalities, provided legitimateobjectives of my client will not beadversely affected.7. I will not serve motions or pleadings inany manner that unfairly limits anotherparty’s opportunity to respond.8. I will attempt to resolve by agreementmy objections to matters contained inpleadings and discovery requests andresponses.9. I can disagree without beingdisagreeable. I recognize that effectiverepresentation does not requireantagonistic or obnoxious behavior. I willneither encourage nor knowingly permitmy client or anyone under my control todo anything which would be unethical orimproper if done by me.10. I will not, without good cause,attribute bad motives or unethical conductto opposing counsel nor bring theprofession in to disrepute by unfoundedaccusations of impropriety. I will avoiddisparaging personal remarks or acrimonytowards opposing counsel, parties andwitnesses. I will not be influenced by anyill feeling between clients. I will abstainfrom any allusion to personal peculiaritiesor idiosyncrasies of opposing counsel.11. I will not take advantage, by causingany default or dismissal to be rendered,when I know the identity of an opposing

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counsel, without first inquiring about thatcounsel’s intention to proceed.12. I will promptly submit orders to theCourt. I will deliver copies to opposingcounsel before or contemporaneously withsubmission to the court. I will promptlyapprove the form of orders whichaccurately reflect the substance of therulings of the Court. 13. I will not attempt to gain an unfairadvantage by sending the Court or its staffcor r espondence or copies ofcorrespondence.14. I will not arbitrarily schedule adeposition, Court appearance, or hearinguntil a good faith effort has been made toschedule it by agreement. 15. I will readily stipulate to undisputedfacts in order to avoid needless costs orinconvenience for any party. 16. I will refrain from excessive andabusive discovery.17. I will comply with all reasonablediscovery requests. I will not resistdiscovery requests which are notobjectionable. I will not make objectionsnor give instructions to a witness for thepurpose of delaying or obstructing thediscovery process. I will encouragewitnesses to respond to all depositionquestions which are reasonablyunderstandable. I will neither encouragenor permit my witness to quibble aboutwords where their meaning is reasonablyclear.18. I will not seek Court intervention toobtain discovery which is clearly improperand not discoverable.19. I will not seek sanctions ordisqualification unless it is necessary forprotection of my client’s lawful objectivesor is fully justified by the circumstances.”

The author is not ignorant of the fact that often we dealwith opposing counsel and/or difficult clients thatseriously test our fortitude in living up to the Creed. Likewise, we sometimes encounter lawyers who haveseemingly misplaced, or never owned, a copy of the Creedor rules of conduct. Nonetheless, it is imperative that weresist the urge to waiver in our vigilance to uphold theideals of our profession as contemplated by the Creed. Ifwe persevere in following the spirit of the Creed, it ishighly unlikely that we will ever be faced with confronting

any serious rules violations.

B. The Texas Rules of Professional Conduct The rules governing the conduct of lawyers in Texas

are the Rules of Professional Conduct. A violation ofthese rules can lead to the filing of a grievance, andpossibly punishment, which can range from a mere privatereprimand to the severe ultimate sanction of disbarment.

The TRPC is divided into nine sections which outlinewhat is required of attorneys in their dealings with clients,other lawyers, the tribunal, pro se litigants and other thirdparties, and in maintaining the integrity of the profession. The nine sections can be classified into five distinctgroups in the categories listed above.

The TRPC is too voluminous to reprint here, but canbe found in Vernon’s Annotated Texas Rules of Court-State, as well as the websites for the Texas Commissionfor Lawyer Discipline, the Texas Center for Ethics andProfessionalism, and the Texas Supreme Court website. The Preamble to the TRPC helps to set the stage for thediscussion.

1. “A lawyer is a representative of clients, anofficer of the legal system and a public citizenhaving special responsibility for the quality ofjustice. Lawyers, as guardians of the law, playa vital role in the preservation of society. Thefulfillment of this role requires anunderstanding by lawyers of their relationshipwith and function in our legal system. Aconsequent obligation of lawyers is to maintainthe highest standards of ethical conduct.

2. As a representative of clients, a lawyerperforms various functions. As advisor, alawyer provides a client with an informedunderstanding of the client’s legal rights andobligations and explains their practicalimplications. As advocate, a lawyer zealouslyasserts the client’s position under the rules ofthe adversary system. As negotiator, a lawyerseeks a result advantageous to the client butconsistent with requirements of honest dealingwith others. As intermediary between clients, alawyer seeks to reconcile their divergentinterests as an advisor and, to a limited extent,as a spokesperson for each client. A lawyeracts as evaluator by examining a client’s affairsand reporting about them to the client or toothers.

3. In all professional functions, a lawyer shouldzealously pursue clients’ interests within thebounds of the law. In doing so, a lawyer shouldbe competent, prompt and diligent. A lawyer

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should maintain communication with a clientconcerning the representation. A lawyer shouldkeep in confidence information relating torepresentation of a client except so far asdisclosure is required or permitted by the TexasDisciplinary Rules of Professional conduct orother law.

4. A lawyer’s conduct should conform to therequirements of the law, both in professionalservice to clients and in the lawyer’s businessand personal affairs. A lawyer should use thelaw’s procedures only for legitimate purposesand not to harass or intimidate others. Alawyer should demonstrate respect for the legalsystem and for those who serve it, includingjudges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, tochallenge the rectitude of official action, it isalso a lawyer’s duty to uphold legal process.”

1. Client-Lawyer Relationship (“How wetreat/represent our clients”)TRPC Rules 1.01 through 3.10 primarily address

what is expected in our dealings with our clients. SectionI addresses the formation of the Client-LawyerRelationship, including setting out what constitutes aconflict of interest, confidentiality of information, settingand collecting attorneys fees, communication, safekeepingof property, and declining or terminating representation ofa client. Section II describes the lawyer’s role as anadvisor to the client. Section III outlines the lawyer’s roleas advocate for the client, and the balance that must bemaintained between zealous representation andmaintaining the integrity of the system.

2. Lawyer-to-Lawyer Relationship (“How we treat eachother”)In addition to the Texas Lawyer’s Creed, TRPC

rules 4.01, 4.02, and rules 5.01 through 5.08 address ourdealings with other lawyers, whether as opposing counselor those with whom we are associated or within the samefirm. The most significant of these rules is 4.01governing Truthfulness in Statements to Others.

3. Lawyer-to-Tribunal Relationship (“How we treat theJudge and the System”)TRPC Rules 3.03, 3.05, 3.06, 3.07, 4.01, 6.01, and

Rules 8.01 through 8.05 address our obligations forcandor with the judges before whom we appear and howour actions reflect upon the integrity of the process. Thisis more than a lofty goal. Specific violations of theserules can lead to discipline and sanction. Attempts at exparte communications, disparaging comments about a

judge and actions that directly impact or influence theoutcome of a case are subject to discipline.

4. Lawyer and Third-Party Relationships (“How weTreat Those Outside of the Attorney-ClientRelationship”)TRPC Rules 5.04, 5.05, 7.02, 7.03, 7.04, 7.05, and

7.06 addresses our communications with those with whomno formal attorney-client relationship exists, or withwhom attorneys cannot share profits and/or fees. Theseprovisions include the rules for advertising for legalservices, soliciting clients, financial arrangements withnon-lawyers, and maintaining professional independence.

5. Lawyer and Pro Se PartiesTRPC Rules 1.07, 4.03 and 4.04 address what is

expected and required when dealing with persons who arenot represented by counsel. This includes those personswho are already a party to the case and those who arelikely involved or have an interest in the matter, whetherdirectly or indirectly.

III. TEN MOST COMMON ETHICAL MISTAKESIn preparation for writing this article, I polled a

number of family law colleagues to determine the generalconsensus as to the most common ethical mistakes in thefamily law arena. Additionally, I contacted my fellowtrustees on the Board of Disciplinary Appeals regardingwhat they see in the nature of the compulsory disciplinematters. As you can imagine, the majority of grievancesfiled occur in the family law and criminal law disciplines. This is not surprising when you consider the emotionalnature of the issues with which clients are dealing in thosetwo particular areas. The following are what appear to bethe most common ethical mistakes that occur in thepractice of family law.

A. Lying and Cheating (aka “The ‘Duh’ Rule”)Believe it or not, when polling my colleagues, this

one came up more than I expected. The biggest complaintwas the belief of several well-respected attorneys that theinstances of lawyers who misrepresent facts to opposingcounsel or the tribunal are somewhat rampant these days. The complaints ranged from lying about being served withdiscovery, reasons for not appearing for a noticed hearingor deposition, and flat out lying to the court about facts orexchanges between counsel.

TRPC 4.01 requires us to be honest in ourstatements to others, be it opposing counsel, our clients,witnesses or the court. This does not mean that we haveto “tell all we know.” But it does require candor andhonesty with those whom we deal.

No matter how diligent or obsessive-compulsive we

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may be, there is not one among us that has not missed adeadline, forgotten to supplement discovery, or double-booked a hearing. Generally I find if I am forthcomingabout my mistake and ask opposing counsel for a break,it is usually something that can be fixed. I call it the“karma” rule, or “what goes around, comes around.” Iam not ignorant of the fact that some lawyers will try touse that to their advantage and will not be helpful, andmay in fact exploit the situation. In those cases I do twothings: (1) recognize that it was my mistake to begin with,and (2) file away the other lawyer’s actions for futurereference. Invariably they will need similar assistance inthe future. Nonetheless, I know that I have beenforthcoming in my mistake, and believe that most judgeswill reward honesty with some leniency.

Lying clearly can have serious consequences for thelawyer who engaged in the deceit. Within the last twoyears, a family lawyer from Fort Worth has beenconvicted and faces permanent disbarment for lying to thecourt regarding a termination and adoption proceeding,and forging a signature on adoption papers. I am oftenamazed at the number of people that will lie when thetruth would actually serve them better. Unfortunately, itoccurs. The best advice in this area is the same that ourparents and grandparents gave us–honesty is the bestpolicy. Our reputations are made upon our dealings withothers and whether we deal honestly with them. I believeI have been far better served by acknowledging mymistakes, because when there is a question of facts, thosewith whom I deal should be able to rely on myrepresentations based upon our prior dealings.

B. Conflicts of InterestOne of the most common ethical issues that comes up

in family law cases is conflicts of interest. This can takemany forms, from prior representation of the opposingparty, having a personal interest in the case or outcome,or attempting to “mediate” a case between two otherwiseunrepresented parties. Although avoiding conflicts ofinterest is one of the most basic rules of ethics, it comesup more often than one might think.

1. Prior Representation of Adverse PartyIn family law, this comes up most often when a

lawyer represents one spouse in a matter, (not necessarilya family law matter), and then attempts to represent theother spouse in a later divorce or post-divorce proceeding.

TRPC 1.09 addresses this situation. It states inrelevant part:

“(a) Without prior consent, a lawyer whopersonally has formerly represented aclient in a matter shall not thereafter

represent another person in a matteradverse to the former client:

(1) in which such other personquestions the validity of thelawyer’s services or workproduct for the former client;

(2) if the representation inreasonable probability willinvolve a violation of Rule 1.05;or

(3) if it is the same or asubstantially related matter.

(b) Except to the extent authorized by Rule1.10, when lawyers are or have becomemembers of or associated with a firm,none of them shall knowingly represent aclient if any one of them practicing alonewould be prohibited from doing so byparagraph (a).

(c) When the association of a lawyer with afirm has terminated, the lawyers who werethen associated with that lawyer shall notknowingly represent a client if the lawyerwhose association with that firm hasterminated would be prohibited from doingso by paragraph (a)(1) or if therepresentation in reasonable probabilitywill involve a violation of Rule 1.05.”

On more than one occasion when I have learned about thisissue arising, I have heard lawyers say, “We’ll just set upa ‘Chinese wall.’” Unfortunately for them, there is nosuch thing as a ‘Chinese wall.’ Just ask Vinson andElkins and some of the other big firms. Bottom line isthat if someone in your firm has previously represented aspouse or party in a substantially related matter, (e.g. thedivorce or custody proceeding or drafting the pre-nup),you cannot now represent the other party. Period.

This is not to say that conflicts cannot be waived bythe other side, or, in the case of an initial consultation ina prior proceeding that could not possibly have disclosedconfidential information relevant to a post-orderproceeding, a conflict may not technically exist. However, I have found that playing too sharp with therules is simply a recipe for disaster. If there is anyquestion about whether a conflict exists, then it probablydoes, and unless a written waiver is secured, you’d bemuch better off declining the case.

Another situation that arises in family law is a matterwhich involves multiple parties, such as a custody matterthat includes both parents and interested third parties (e.g.

4


grandparents). Oftentimes, two of the parties are aligned,and one of the parties may be paying the fees for the partywith whom he/she is aligned. This is fine, as long aseveryone is getting along. Unfortunately, issues arisewhen parties who were once aligned become at odds withone another.

The prudent lawyer will make sure from the verybeginning of the representation that it is clear to all whothe lawyer represents. If a lawyer is appearing for onlyone party, then that needs to be specifically noted. Whilethere is nothing wrong with representing two parties whoseem to be similarly aligned with one another, if a conflictbetween those clients ever emerges, the attorney has nochoice but to withdraw from representation of all parties,and advise them to hire separate and individualrepresentation.

2. Personal Interest in Case and/or Outcome Clearly, if a lawyer has a personal, vested interest in

the outcome of a case, this presents a conflict sanctionableby the rules. This can take several forms. The mostcommon is when an attorney is facing financial problemsand allows his/her need for income to influence howhe/she advises a client or handles settlement negotiations. Similarly, if such a need for income leads to the attorneyaccepting a case that he or she is not competent to handlesimply to generate a fee, that is a conflict. (E.g., familylawyer accepting a bankruptcy or tax case). Anotherexample is referring a client to an entity or professionalorganization in which the lawyer has a financial interest. Any situation in which the attorney’s own interests mayinfluence the attorney’s advice or representation of theclient is a violation of the rules.

However, if the interest is disclosed, there are somecircumstances whereby the client may waive the conflictor potential conflict. (E.g.–former spouse consulted withlawyer on an unrelated issue several years earlier, but didnot retain the lawyer, and no confidential informationrelevant to the current proceeding was disclosed–currentpotential client attempts to hire lawyer for new, unrelatedproceeding. Former spouse could waive the conflict.)Nonetheless, even if a client were so willing, if adisinterested lawyer would conclude that the client shouldnot agree to the representation under the circumstances,the lawyer should decline the representation.

In my experience, if clients seem reluctant to waiveconflicts, it simply will never be worth the potentialconsequences, regardless of the amount of the retainer andfees one might hope to generate. Particularly in the areaof family law, where often there is a high level of personaldistrust among the litigants, lawyers are well-advised todecline representation if even the appearance ofimpropriety may exist.

3. “Mediator” for Unrepresented PartiesA situation that I am seeing more and more of is

lawyers in the family law area advertising “mediation”services for unrepresented parties. They accept a fee andthen attempt to hold conferences that are intended to helpthe parties reach an agreement on their family law case. While possibly well-intended, this situation is a very badidea and can likely result in sanctionable conduct.

Family law cases can involve many complex issuesand theories, and inevitably involve highly personal factsof a confidential nature. It is very difficult to imagine asituation where a lawyer could successfully mediate acase between two unrepresented parties without givingsome legal advice, which in turn creates a lawyer-clientrelationship between the lawyer and the spouse/party towhom the advice was given. In such a case, there is adanger in creating a situation where the lawyer is advisingboth clients, whose interests clearly are adverse. Theresult is the lawyer attempting to represent two adverseparties in the same suit, which is a clear violation of therules.

It is not always possible for a lawyer to avoid havingto deal with a pro se litigant, and that situation could alsooccur in the mediation scenario. However, for one singlelawyer to invite the situation where he/she may providelegal advice to adverse parties in a case is a recipe fordisaster.

C. Fee ArrangementsThe setting and collecting of attorney’s fees is a

frequent topic of disciplinary action. While a fee disputewith a client is not in and of itself a sanctionable event,lawyers can get into trouble if the setting and/or collectingof a fee violates the rules of conduct. Where lawyersseem to get into the most trouble is in setting anunconscionable fee, or not explicitly setting out the termsof the employment contract.

TRPC 1.04 governs a lawyer’s responsibilities asthey pertain to setting and collecting fees. This rule statesin relevant part:

“(a) A lawyer shall not enter into an arrangement for, charge, or collect anillegal fee or unconscionable fee. A fee isunconscionable if a competent lawyercould not form a reasonable belief that thefee is reasonable.

(b) Factors that may be considered indetermining the reasonableness of a feeinclude, but not to the exclusion of otherrelevant factors, the following:

(1) the time and labor required, the

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novelty and difficulty of thequestions involved, and the skillrequisite to perform the legalservice properly;

(2) The likelihood, if apparent tothe client, that the acceptance ofthe particular employment willpreclude other employment bythe lawyer;

(3) The fee customarily charged inthe locality for similar legalservices;

(4) The amount involved and theresults obtained;

(5) The time limitations imposed bythe client or by thecircumstances;

(6) The nature and length of theprofessional relationship withthe client;

(7) The experience, reputation, andability of the lawyer or lawyersperforming the services; and

(8) Whether the fee is fixed orcontingent on results obtained oruncertainty of collectionservices have been rendered.

(c) When the lawyer has not regularlyrepresented the client, the basis or rate ofthe fee shall be communicated to theclient, preferably in writing, before orwithin a reasonable time aftercommencing the representation

(d) A fee may be contingent on the outcomeof the matter for which the service isrendered, except in a matter in which acontingent fee is prohibited by paragraph(e) or other law. A contingent feeagreement shall be in writing and shallstate the method by which the fee is to bedetermined.....”

The only fee arrangement required by the rules to be inwriting is a contingent fee contract, which rarely comesup in family law cases and should be avoided in thatcontext. However, although not required, it is certainly anexcellent practice to make sure that the specific details ofrepresentation are reduced to writing and signed by theattorney and the client. Not only does this ensure thatboth the lawyer and client understand the cost and termsof the representation, it is also very useful in the event adispute ever arises as to the fee. A sample fee letter is

attached hereto as Appendix A.With respect to contingent fees in the context of

family law, the rules do not explicitly prohibit same. However, Comment 9 to the rule cautions against sucharrangements, because such fees may tend to encouragedivorce or otherwise be inconsistent with a lawyer’sobligation to encourage reconciliation. It may also tend tocreate a conflict of interest between lawyer and clientregarding the appraisal of assets obtained for the client. Because of the human relationships involved and theunique character of the proceedings, contingent feearrangements in domestic relations cases are rarelyjustified.

In many cases, grievances filed against an attorneyinvolve a fee dispute, which is not sanctionable conductunless the fee is determined to be “unconscionable.” Often these cases are referred to the SBOT Client-Attorney Assistance Program (CAAP) to assist theresolution of these disputes. However, sometimes thecomplaint by the client is, on its face, an allegation of anunconscionable fee. In those cases, the grievance processis invoked. Accordingly, those attorneys who have asigned fee agreement that specifically sets forth theexpectations of the nature of the representation will faremuch better in the process.

Paragraph (a) attempts to define “unconscionable”and “unreasonable.” However, it is sometimes difficult toquantify these terms on a case by case basis. While notexplicitly set forth in the rules, it seems to be a no-brainerthat an unconscionable fee would include requiring sex inexchange for representation, or some other equallydespicable arrangement. Unfortunately, these allegationshave arisen more than once in my experiences on thegrievance committee and BODA. The rules do notprohibit “barter” arrangements in and of themselves. Only those situations that are clearly inappropriate oragainst public policy.

D. Lack of Communication with the ClientIt should not be a great shock to anyone that the

single most common grievance against lawyers is failureto keep the client reasonably informed of the status oftheir case, including but not limited to, unreturned phonecalls. Rule 1.03 governs this requirement, which is fairlybasic–the lawyer must keep the client reasonably informedof the status of a matter and promptly reply to reasonablerequests for information, and shall explain the matter tothe extent necessary to permit the client to make informeddecisions about the representation.

Certainly there are those clients that seem to haveyour number on speed dial and may repeatedly call oversmall or trivial matters. If the lawyer were to take thetime to respond to every single inquiry in this situation,

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they would unlikely have the time to meet their otherclients’ needs. I find that this is often resolved after theclient receives the first bill illustrating a charge for eachphone call. Unfortunately, there are those clients withseemingly unlimited funds or someone else is paying theirbills (or they are not paying their bills and do not care) sothey monopolize the lawyers’ time and their staffs’ time. There is no requirement that the attorney drop everythingto address that client’s non-emergency concerns. There isa responsibility, however, to make sure the client is keptup-to-date on the status of his case and that reasonableinquiries are addressed.

E. Negative Comments About Opposing CounselNegative comments about opposing counsel or other

lawyers with whom the client has consulted is notspecifically prohibited by the rules, but can lead tosanctionable conduct if it interferes with the lawyer’sability to effectively represent the client. It generallyreflects poorly on the lawyer making the comment, andcan violate the rules if it encourages inappropriatebehavior or otherwise escalates litigation in violation of anattorney’s obligation not to exacerbate or encouragecontentious litigation.

This is not to say that I do not recognize that thereare infuriating, unscrupulous, incompetent and/orunethical lawyers with whom we come in contact, whoseactions simply serve to increase costs and emotionalhostility between the parties. It is often a fine line for anattorney to walk in explaining to a client that the costs oflitigation are a direct result of the actions of opposingcounsel, without making a significantly demeaningreference to that lawyer. While violations of the TexasLawyers Creed are not punishable, negative or criticalcomments about other attorneys are ill-advised and canultimately lay the groundwork for what could besanctionable conduct.

F. Negative Comments About the JudgeSimilar to negative comments about other lawyers,

negative comments about judges made to clients or otherlawyers are also discouraged. Again, sometimes it isnecessary to explain to a client a judge’s knownproclivities and ideas as they apply to certain aspects ofa case so that the client can both reasonably evaluate asettlement offer and also not be surprised by a judge’sruling. However, it is very easy to step over the line whenpassing personal judgment about a court and whether heor she is a “good” or “bad” judge. Likewise, I amconvinced that judges, similar to mothers of smallchildren, have “eyes in the backs of their heads,” andinevitably the comment will be made to someone who willpass the statement on to the court. Contrary to popular

belief, judges are people too, and it is not a pleasantexperience to appear before a judge who has been madeaware of your less-than-positive statement.

G. Implying a “Special” Relationship with the CourtThe reverse of the above is also true. It is a

sanctionable action to imply that a lawyer’s relationshipwith the court will benefit the client and her case. Thisruns afoul of the TRPC 3.05, as well as the Texas Codeof Judicial Conduct. It also violates the rules of conductin that it implies that the lawyer can guarantee a resultbased upon the lawyer’s relationship with the court.

Because of the nature and comradery of ourprofession, we often form close personal friendships withmembers of the judiciary. This is especially true in ruralareas and in specialty bars, such as the family law bar,because we see each other so often. This is to be expected. In some situations that are not a technical conflict, I havehad judges inform litigants of the fact and allow them theoption of requesting another judge to hear the case. Inother situations I have found that when appearing beforea judge whom I also consider a friend, the judge issometimes harder on me than on the opposing sidebecause he or she expects more of me. Nonetheless, toimply that the outcome of the case may be effected by therelationship between a lawyer and a judge is a violation ofthe rules.

When I practiced in rural East Texas, this issue cameup often. There were many times a potential client wouldconsult with me because they heard I was “friends withthe judge.” Whenever this occurred I took immediatesteps to set the record straight and advise the client thatthe judge would not let any personal relationships interferewith his ability to rule fairly. Similarly, I would haveclients express concern about other lawyers they “heard”were close friends with a particular judge, and these ideashad to be addressed as well. Because the rules requirelawyers to protect and maintain the impartiality of thetribunal, our responsibility is to make sure our clientsunderstand that personal, social relationships with judgesdo not influence the ultimate decision in a case.

H. Ex Parte Communications With the CourtIn polling colleagues and jurists in preparation for

this topic, several of the judges listed ex partecommunications as one of the most frequent ethicalmistakes made by attorneys. Ex parte communicationsare prohibited by TRPC 3.05. Simply put, a lawyercannot speak to a judge about the facts of a case overwhich the judge may later preside, if such communicationis outside the presence of the other party or attorney.

One of the judges polled says that this most oftenarises when the attorney contacts the court about a

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purportedly procedural matter, and then inevitablylaunches into something about the case that may influencethe judge’s position. These prohibited communicationsalso apply to contacts with the judge’s staff.

One of my personal pet peeves is attorneys who writeinflammatory letters to the court in an effort to influencethe court’s opinion about the case, my client or me, andthe lawyer attempts to circumvent the rule by sending mea copy, as if that somehow makes it acceptable. Similarly, it is inappropriate for lawyers to writeinflammatory letters to opposing counsel about the factsof a case or discovery disputes and then file the letter withthe court or copy the court on the correspondence. Thisis also an attempt to influence the court as prohibited byTRPC 3.05. Any attempt by a litigant or lawyer toinfluence the court’s decision outside the presence of theopposing party/lawyer, or where the circumstances do notprovide for an opportunity to respond meaningfully is aviolation of 3.05.

I. Failure to Withdraw When WarrantedProbably one of the most common mistakes I see

both in my daily practice and as a member of BODA, isobserving instances where a lawyer waits too long towithdraw from a case when he or she is truly justified indoing so. While the failure to withdraw in and of itself isnot a grieveable offense, the breakdown of the attorney-client relationship can lead to other sanctionable conduct,or at least result in a grievance being filed against thelawyer.

Probably the most common reason an attorneywithdraws is because the client has failed to honor thepayment of fees under the attorney-client contract. Lawyers work hard and deserve to be paid. Unfortunately, sometimes we are not the best businessmanagers, and by the time we are forced to withdraw, theclient usually is significantly behind on fees. We all knowthat the two touchiest subjects in any personal relationshipare politics and money. Inevitably, no matter how stellaryour representation of a client, by the time a lawyer isforced to file a motion to withdraw based upon unpaidfees, the client has become very critical of therepresentation and is looking for a reason to avoidpayment.

Additionally, sometimes withdrawal is necessarybecause the lawyer and client have become crosswise withrespect to the strategy and pursuit of the case, and/or theclient is disregarding the lawyer’s direct advice regardingthe case, usually to the client’s detriment. Consequently,by the time a lawyer feels it is time to withdraw in thissituation, communications have deteriorated so much thata grievance is filed.

When a client first hires a lawyer and pays the

retainer, the honeymoon period begins and both lawyerand client have many expectations, some of which areunrealistic. By the time the shine wears off, both thelawyer and client are disappointed, and communicationsbecome strained. The best advice I have in this regard iswhen a client comes in who sets off that little alarm inyour head about whether to take the case ornot–DON’T–regardless of the fee. My worst clientexperiences were the result of me ignoring that little voicebecause it was the end of the month and payroll and rentwere due. I regretted it every time, and every time I endedup withdrawing before the case was concluded.

While we all want to believe we are good lawyersand can handle each case that comes our way, sometimeswe are not the best lawyer for that particular case orclient. When communications break down or earned feesare not being paid, the lawyer needs to withdraw. Youwill have a much less complicated and more peacefulexistence if you will honor that commitment to yourself.

J. Obligations Regarding the Client’s FileI have served on BODA for approximately three

years, but between my service on BODA and previouslyon grievance committees, the most surprising thing Iobserved was the widespread misconceptions held bylawyers with respect to the client’s file and what thelawyer’s rights and responsibilities were upon conclusionor termination of the attorney-client relationship. It wasnot uncommon to hear grievances concerning lawyers whorefused to return the file to the client upon request, oftenholding the file hostage until the client paid a past due fee.

It would appear that many lawyers still do not realizethat the client file, even if predominantly created by theattorney, is the property of the client. An attorney has noright to refuse the return of a client file for any reason orpurpose, even if the lawyer has a legitimate reason towithdraw from the case. This is not to say that the lawyeris prohibited from retaining a copy of the file, or most ofthe original pleadings or papers that are not personalitems belonging to the client, so long as a true and correctcopy of the file is delivered to the client. Especially if therelationship ended under strained circumstances, theprudent lawyer always will make sure to keep a completecopy in case questioned about it later, and has every rightto withhold personal notes and strategic work productfrom the file. However, failure to return the file to theclient upon demand is a sanctionable offense.

Rules 1.14 and 1.15 and the official Commentsthereto govern this area of professional conduct. The bestadvice I can give in this area is, repeat after me, “The filebelongs to the client; the file belongs to the client.” Period.

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K. Use/Abuse of Social MediaNow that we are well into the 21 century, we are allst

familiar with email, texting, “tweeting”, Facebook,YouTube, MySpace, LinkedIn, Plaxo, and the million ofother social media outlets available. (Well, everyoneexcept my father who still does not know how to send anemail or open an attachment...). Who among we familylawyers has not had what I refer to as the “FacebookDivorce,” where your client or their spouse has“reconnected” with their former high school sweetheartand rekindled their romance, because he or she“understands me.” How many of us routinely check thosesocial media sites for evidence that might be used againstour clients or the other side in that regard?

Similar to emails generally, I am often astonishedwith the amount and type of information that people arewilling to share on Facebook and similar sites that theywould be embarrassed to share in polite company. Something about posting something in the privacy of yourhome office, but which is broadcast on the internet forliterally millions of people to see, is mind-boggling.

Unfortunately, more and more, lawyers are guilty ofthese actions, and seem to have little judgment in whysome of this conduct is unethical and could land them infront of a grievance committee. Just about every lawyerunderstands that you cannot write a letter disclosingconfidential information or discussing developments inlitigation. Why then do you suppose some lawyers,particularly some of the newer ones, think it is perfectlyfine to “tweet” about what is happening in a deposition asit is transpiring? Or posting on Facebook commentsabout opposing counsel or the parties? A colleaguerecently shared with me that he/she was aware ofassociates in a firm who were doing just that. Evenworse, because of the notoriety of the parties and theextensive value of the estate, everyone was under aconfidentiality agreement. Sure, nothing is more“confidential” than a lawyer “tweeting” about casespecifics and party identification on an internet outletaccessible by the whole world. Literally.

Obviously this could be considered a seriousviolation of the rules. So, whether or not your client isAverage Joe or Joe Millionaire, disclosing anyinformation about the case in a non-confidential forum isill-advised.

IV. GRIEVANCE PROCESSThe actual grievance process through which an

attorney must go if a grievance has been filed, which, onits face, is a rule violation, is governed by the Texas Rulesof Disciplinary Procedure. The following is a briefdescription of how Grievance Committees are formed andhow grievances move procedurally through the system.

The State Bar of Texas is governed by a Board ofDirectors which is made up two-thirds by attorneyselected by the lawyers in their respective districts, andone-third by public members appointed by the Governor. Each elected attorney Director from each SBOT Districtmay nominate, and subsequently the President of the StateBar appoints, members of the local, district GrievanceCommittees. The Grievance Committees are alsocomprised of two-thirds attorney members and one-thirdpublic members. Most committees function in panels, anden banc proceedings occur only in limited circumstances.

When a purported grievance is filed, the first actiontaken is a review by the attorneys for the Commission onLawyer Discipline (Chief Disciplinary Counsel) for thevarious districts to review the complaint to determinewhether the complaint, on its face, is a violation of one ormore of the Rules of Professional Conduct. If theCommission’s attorney finds that the complaint does notallege a violation of one of the rules, the complaint isdismissed without further action, other than notifying theComplainant that the complaint was dismissed, and thatthe Complainant may pursue a one-time appeal of thedismissal to the Board of Disciplinary Appeals. Ifappealed, a panel of the Board will review the complaint,and either “affirm” the dismissal, or “upgrade” thecomplaint for further investigation into whether “justcause” exists to pursue the matter further.

If the Commission’s attorney does find that the faceof the complaint does allege a grievance, the complaint isinvestigated and notices are sent to the Respondentattorney who must file a response to the grievance. Oncethis occurs, the complaint will take one of two tracks.

The first possible track is if the Chief DisciplinaryCounsel, after considering the complaint, the response,and the investigative work presented, that no ‘Just Cause’exists, the complaint is placed upon the “SummaryDisposition Panel” docket. At this docket, the ChiefDisciplinary Counsel (hereinafter “CDC”) presents thecomplaint to the panel without the presence of either theComplainant or the Responding lawyer. The Panel thendetermines whether the complaint should be dismissed orproceed. If determined that the complaint should proceed,the matter is set for an evidentiary panel to determinewhether just cause exists for possible sanction. At thetime the complaint is determined to proceed to evidentiaryhearing, the Respondent lawyer may elect to have a trial,with or without a jury, in the district court in thegeographic area in which he or she practices, OR, havethe matter heard by an Evidentiary Panel of the GrievanceCommittee.

If the CDC actually finds that just cause does existinitially upon the filing of a complaint, then the matterproceeds directly to an evidentiary proceeding, with the

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Respondent attorney being provided the election asoutlined above.

There is not a lawyer in Texas who doesn’t feel sickor fearful when he hears the word “grievance.” It is forthis reason that I am continuously astounded when alawyer who has been given notice of a grievance filingagainst him or her completely ignores the notice and failsto respond. This failure to respond is a violation of theRules of Professional Conduct in and of itself. Accordingly, if there is anything you take away from thispaper, then let it be that if you ever receive notice that agrievance has been filed against you, (and I hope youdon’t), RESPOND–fully, candidly, and with as muchsupporting documentation as is humanly possible. Manycomplaints are dismissed in Summary Dispositionbecause the Respondent attorney took the time to respondthoughtfully and fully cooperated with the investigationsand inquiries.

V. PEARLS OF WISDOM - “BECAUSE NICEMATTERS”This year marks my nineteenth year in the practice of

law. (I know what you’re thinking–she doesn’t look thatold...). While as a child my goal was to be the next “Dr.Doolittle” and become a veterinarian, I soon learned thatmy proclivities were more designed toward the legalprofession. I had the distinct and rare honor of having theexample of professionalism and integrity as modeled bymy father, Joe Cannon, who is still a country lawyer inLimestone County, Texas. Last year, he was recognizedas an Outstanding 50 Year Lawyer by the Texas BarFoundation.

Growing up I watched my father represent his clientswith zealous, but professional, advocacy. The majority ofthe time, the opposing counsel he faced were his personalfriends, with whose children I played, with whom weattended church and participated in social activities. Iwould watch those lawyers earnestly represent theirclients, fighting hard for their clients’ causes, without evermaking personal attacks on one another or demeaning theopposing party. I saw those same lawyers, after a hard-fought courtroom battle, shake hands, and often walkacross the street to my father’s office to share a post-hearing toast and re-live the more memorable events of thetrial.

When I first got out of law school and worked (for avery short time) at a litigation firm in a metropolitan area,I innocently believed that I would also share those typesof experiences. You can imagine my disappointmentwhen in one of my very first cases, I called opposingcounsel to introduce myself and was flooded withunprofessional attacks on my client personally andRambo-type litigation tactics. Thankfully, I had the

examples of my father and his colleagues to remind methat all lawyers do not act unprofessionally. However, Iworry for those young lawyers who are met with similarexperiences as my first described above, and am saddenedthat many may believe that type of behavior is just theway it is supposed to be.

I wish I could say that I have not noticed a decline inprofessionalism over the last 19 years, or that lawyersalmost always treat each other with courtesy andprofessionalism. However, I do believe that the majorityof lawyers try to conduct themselves appropriately, and Iremain hopeful that when they do so, their opposingcounsel will reward them with like professional courtesies.

The one person I have control over is myself. Andwhile I have had some unpleasant experiences with somelawyers over the years, I am happy to report that themajority of my dealings with other attorneys has beenvery positive, and I am always amazed and proud to be apart of such a time-honored and worthy profession - onein which we can do what we enjoy and have theopportunity to truly help people, while also making arespectable living.

When dealing with those few lawyers who make ourstomachs churn when we hear they are on the phone, I tryto remember what I heard in a similar presentation a fewyears ago–“Everyone we come in contact with is doing thevery best they can at that very moment in time.” Withunethical, game-playing lawyers, I often wonder how theirbehavior can really be their “best.” But sometimes ithelps me put things in perspective and generate the extraenergy it takes to deal with them.

If there is one pearl of wisdom I have learned in my19 years of law practice, it is the mantra that adorns aplaque in my office that is displayed for both lawyers andclients to see. It says simply, “Because nice matters.” Being nice is not the same as being weak. It is simplecommon courtesy and putting oneself in the other person’sshoes, if only for a moment. Being nice has afforded meneeded extensions on discovery, forgiveness for a misseddeadline, re-setting hearings due to unforeseencircumstances, and return of inadvertently disclosedconfidential information. Sure, there are always thoselawyers, and sometimes clients, that will behave badly orunprofessionally, or fire you because they desire anunscrupulous lawyer who plays games and shares theirpainful views of the world. But most people, (andlawyers are people, too) appreciate kindness, courtesy andprofessionalism. Why? Because nice matters.

VI. CONCLUSION“There but for the grace of God go I.” None of us

are perfect–we all make mistakes. However, there are

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some mistakes that can be easily avoided. This paperaddresses the most common ethical mistakes that occurin our family law practices. It is my hope that this hasserved as a friendly reminder for us all as to how touphold the integrity and principles of the profession thatbinds us together.

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