Court Calls Foul on “Unprofessional Language”
The U.S. District Court Southern District of Florida entered an order sua sponte “to address what the Court characterizes as unprofessional language.” It noted that the Florida Bar Oath of Admission not only requires attorneys to be civil in written and oral communications, but also to “abstain from all offensive personality and [to] advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause.” The court also observed that the Florida Bar Creed of Professionalism provides that attorneys will abstain from “all rude, disruptive, disrespectful, and abusive behavior and will all times act with dignity, decency, and courtesy.”
Based on those standards, the court concluded that “the conduct displayed by counsel for both Plaintiffs and Defendant runs afoul of the tenets of professionalism set forth by the Florida Bar” and compared the filings to a “fictional novel or a script from a tabloid Jerry Springer television show.” Moreover, because the plaintiff had previously raised arguments relating to destruction of evidence and inconsistent testimony in a motion for sanctions, the court suggested that the purpose of repeating such allegations was “solely for the inflammatory purpose of painting the Defendant in a negative light.” It advised that “[a] professional pleading does not cast aspersions toward attorneys, parties, or witnesses.”
Accordingly, the court struck the offending briefs and ordered them to be refiled “omitting the inappropriate language.” The court also ordered the attorneys who prepared the briefs at issue to submit briefing on whether the matter should be referred to the court’s Committee on Attorney Admissions, Peer Review, and Attorney Grievance.
Common Lawyer Problem Is a Risk for Clients
ABA Litigation Section leaders highlight the frequency of such attorney conduct. “Sadly, the type of language called out by the court is all too common in legal writing. It took these lawyers years to learn to write that way and will take years to unlearn these bad habits, remarks Michael S. LeBoff, Newport Beach, CA, cochair of the Litigation Section’s Professional Liability Litigation Committee. “Calling out these lawyers should be enough; however, if the conduct continues, a referral to the grievance committee may be the appropriate next step,” LeBoff adds. He notes that while this conduct is common, courts typically ignore these types of comments. “Until courts call out this type of writing, I do not believe attorneys will stop injecting personal insults into their legal writing,” predicts LeBoff.
“Part of good business and good client management is setting the tone of litigation. Counsel should know, and should fully inform the client, of the risks that arise from inflammatory or salacious arguments,” offers Tiffany Rowe, Washington, DC, cochair of the Section’s Professional Liability Litigation Committee. “The parties seem to have gotten caught up in the back and forth, trying to hit back harder. I’d advise the client that, when they go low, we go high,” notes Rowe. “An attorney’s reputation is more important than any one client. If the client insists that you put your name on unprofessional an insulting language, it is time to get a new client,” concludes LeBoff.