‘To me, the first rule of competency is [to] know what you don’t know’
'Sounds pretty simple, but that’s where lawyers get into trouble'
First District Court of Appeal Judge Stephanie Williams Ray offers a brief, from a 2006 appeal, as a textbook example of how a lawyer should not behave.
Without a factual basis, the attorney accused opposing counsel of fabricating evidence, called a trial court’s findings “baloney,” and sprinkled in references to “judicial murder,” “Twilight Zone doctors,” and “fascist” statements.
“So, this panel brought this attorney in for oral argument and was asking about the tone of some of these statements,” she said. “And unapologetically he said, ‘Well, you should have seen what was in my first draft.’”
Participating in a judicial roundtable as part of the 2022 Masters Seminar on Ethics, Judge Ray said the offending lawyer, whom she did not name, was eventually sanctioned.
The case is a standout because it’s so unusual, Judge Ray insisted.
“It was the exception and not the rule,” she said. “We really have an excellent appellate bar.”
Joining Ray on the panel was Senior U.S. District Judge Paul C. Huck of the Southern District of Florida, and Ninth Circuit Chief Judge Lisa Taylor Munyon.
South Florida defense attorney and FIU Law Professor Scott Fingerhut, assistant director of the Trial Advocacy Program, served as moderator.
Fingerhut launched the discussion by asking Judge Huck to discuss “competency” from a judge’s perspective.
“To me, the first rule of competency is [to] know what you don’t know,” he said. “Sounds pretty simple, but that’s where lawyers get into trouble.”
A true professional knows when to refer a prospective client to another lawyer, Judge Huck said. Much of the unprofessional behavior he sees is committed by a lawyer in over his or her head.
“Because some lawyers don’t feel comfortable with their competency, they try to overcompensate… and that’s where they get into trouble,” he said.
The appellate arena can be unforgiving to lawyers who overestimate their competency, Judge Ray said.
“There are an incredible number of outstanding trial lawyers, but that doesn’t mean they’re ready to handle an appeal, it’s a whole different ballgame, a whole different set of rules,” she said. “While you may know the substance, the procedural aspect can be very different and any mistakes along the way could be fatal to your client’s case”
Fingerhut asked the panelists to discuss the impact remote court proceedings have had on professional ethics.
“Our various practices are struggling to hold on to our ability to practice remotely,” he said. “Have you seen it affect the ethical behavior of our lawyers and would you support letting them continue remote practice?”
Judge Munyon said she was worried about one of the “subtler” pitfalls — a young lawyer’s inability to watch more experienced colleagues perform in a live courtroom.
“Some of the young lawyers that appear in front of me do not have the advantage of having come into a courtroom where experienced lawyers are already arguing a motion to compel, or some other contentious matter, and doing it in a very professional way,” she said.
Zoom can be a valuable tool for the courts, Judge Huck said, but he worries that beginning lawyers are no longer being mentored by senior lawyers at the office.
“It seems to be an unfortunate trend that all the young lawyers not only want to stay at home to do Zoom, but they’re demanding to stay home to do the Zoom, and I think they’re taking a short-term benefit …for a long-term loss, in terms of growing your professionalism, growing your experience, becoming the best lawyer that you can be.”
Judge Ray agreed.
“It’s much easier to meet with a mentor, your senior partner, if you can just walk down the hall and brainstorm an issue,” she said. “At the First DCA, I’ve asked for my clerks to be in the office, we can safely do so now, and it makes for a much better work product.”
Fingerhut asked the panelists whether the nation’s growing political and economic divisions are impacting civility in the legal profession.
“Is litigation so highly, perversely, incentivized that people just resort to unethical behavior to win and civility may be the best we can hope for?” Fingerhut said. “Is the fracture we see in society, generally today, over the average issue, even over the notion of what a fact is, is that exacerbating our problem among lawyers of being civil to one another?”
Judge Munyon said she fervently hopes not. She said she takes the opportunity, whenever possible, to reassure parties in her courtroom that she and the lawyers will treat everyone professionally.
“I assume when a lawyer comes into court, and they are yelling and screaming, that they are doing that because they really don’t have anything of substance to say, and they’re making up for it with volume,” Judge Munyon said.
Judge Ray said it’s important for judges to set a good example.
“Judges have a duty, too, to treat our colleagues with respect, not only in our personal interactions, but also in our written opinions that are going out to the world,” she said.
Judge Huck said lawyers will find their professional lives much more successful and fulfilling if they take their professional oath seriously.
“If you’re professional, if you’re ethical, if you’re civil, if you treat the court that way, if you treat the jury that way, if you treat opposing counsel that way, you are going to have better results for your client.”