Lawyers' Creeds and Standards of Conduct

Fred Hagans
Hagans, Burdine, Montgomery & Rustay
3200 Travis, 4th Floor, Houston, TX 77006
713.222.2700 ∙ fhagans@hagans-law.com ∙ www.hagans-
law.com

 Perceived deterioration of civility in the way
lawyers treated each other

 Perceived
loss of respect for the judicial
system and the legal profession.

 Perceived increase in the frequency with
which attorneys were misusing or abusing
the rules, particularly the discovery rules.

Chairman
Justice Eugene Cook
Co-Chairmen
Committee Fred Hagans
Judge Norman Black James ―Blackie‖ Holmes
Judge Lamar McCorkle
David Keltner Drafting Subcommittee
David Burrow Fred Hagans
Tom H. Davis Blackie Holmes
Dean Frank Newton Judge Norman Black
Dean (Former Supreme Court Judge Lamar McCorkle
Justice) Charles Barrow David Keltner
Bob Sheehy
Jim Branton

 Size of the Bar
• More attorneys now
• Attorneys don‘t all know each other anymore
• Harder to be mean spirited to people you know
 Technology
• Can send reams of paperwork without thought
• Emails can be sent without review but with
abundant anger and vitriol

 Gathering of other  Increase in gamesmanship
―codes‖  Something to kelp modify
 Vigorous Discussion client‘s expectations
 War Stories  Move society from ―result
 Loss of cohesion in the Bar oriented‖ to ―principle
 Increased Polarization based‖ actions
 Identification of the  Education of lawyers,
guideposts and judiciary and clients
characteristics of  Opposing viewpoints
professionalism
 Aspirational v. Ethical
Rules

 ―Sterilizing‖ the legal process

 ―Watering down‖ zealous advocacy

 Creatingnew standards for sanctions/
malpractice

 Rapid increase in appellate lawyers
between 1980s and 1990s – once again, loss
of cohesion
 Though many appellate lawyers believed
that appeals were far more dignified and
academic than litigation, they were still
accustomed to seeing colleagues resort to
unprofessional behavior.
 Fall 1993: Kevin Dubose submits a presents
a paper at the Advanced Civil Appellate
Practice CLE course, offering suggestions
for professionalism

Chair
Charles ―Skip‖ Watson
Committee
Justice Eugene Cook
Justice Ann McClure
David Gunn
Jessie Amos
Steve Tatum
Shane Sanders
David Hricik
Formed in 1995

 Committee looked to the Texas Lawyer‘s
Creed and other creeds for guidance.
 Adopted by the State Bar Board of Directors
in 1997
 Feb 1, 1999: Supreme Court of Texas and
Texas Court of Criminal Appeals adopt the
Standards for Appellate Conduct.
 Texas was the first jurisdiction in the United
States to adopt guidelines directed
specifically at appellate attorneys.

 Warrilow v. Norell, 791 S.W. 2d 515 (Tex. App.—
Corpus Christi 1989, writ denied)
• Concurrence condemns lawyer for acting as witness
and advocate for his client: “These courts urge our
profession to rededicate itself to the practice of law
„so we can restore public confidence in our
profession, faithfully serve our clients and fulfill our
responsibility to the legal system.‟ Id. at 531. The
considerable lack of ethical judgment presented in
other cases, as well as this one, indicates that this
creed appears at a most auspicious time. Neither
justice nor our fellow man is served until the
principles stated in this creed become the moral
fabric that all lawyers war throughout their personal
and professional lives.” Id.

 Shaw v. Greater Houston Transportation Company,
791 S.W.2d 204 (Tex. App.—Corpus Christi 1990,
no writ)
• Corpus Christi Court of Appeals brings attention to
the Texas Lawyer‟s Creed and its mandate to be
courteous and considerate for both lawyers and
judges when the district judge:
 Ordered an attorney to “shut up”
 Ridiculed one attorney‟s years of experience
 Ordered an attorney to pay money to her favorite charity to help
a personal friend of the judge in need of an organ transplant
 “Informed” the Plaintiff that she was sorry that he was
represented by his attorney.
 Brought her sick child to the courtroom during two days of trial

 In re Matter of J.B.K., 931 S.W.2d 581 (Tex. App.—El Paso
1996, no writ)
• The Court then stated: “The Appellate and Advocacy Section of
the State Bar of Texas has become so concerned with the
standards [or lack thereof] of ethics and professionalism in the
appellate courts that the chair has formulated a committee to
draft „standards of conduct for appellate lawyers,‟ an appellate
attorney‟s creed similar to the one referenced above. Not only has
the chair requested input from the courts, he has announced that
each court will be asked to adopt the creed when it is completed.‟
Id. Finally, the Court concluded: “While we owe a duty to the legal
system as a whole and to the administration of justice, we are
ever mindful that the judiciary also has a duty to the lawyers who
appear before them, to the public at large which elects them, and
even to other members of the judiciary to ensure that our
democracy is preserved and protected and that professionalism
reigns supreme. We take this duty seriously. Id. at 584-85
(emphasis added)

 Caldwell v. River Oaks Trust Co., 1996 WL 227520 (Tex.
App.—Houston [1st Dist.] 1996, writ denied)
• Plaintiff filed a motion to file in excess of 50 pages. The
plaintiff‘s 70-page brief contained phrases ―referring to the
ROTC as the ‗trustee from hell‘ and describing Marietta
Schumacher as a cat torturing a mouse.‖ Id. at *1. In footnote 1,
the appellate court stated: ―We note that the Texas Lawyer‘s
Creed, adopted by the Texas Supreme Court, urges lawyers to
‗avoid disparaging personal remarks or acrimony toward
opposing counsel, parties, and witnesses.‘‖ Id. The court
concluding by stating: The brief contained numerous confusing
references to unidentified, people, places and events as well as
unnecessary argument. Id. Further, ―what the brief does not
contain is coherent legal argument.‖ Id. Finally, ―the plaintiff
could have briefed his points of error with clarity in 50 pages
or less if he had not sacrificed legal analysis in favor of
hyperbole.‖ Id

 Bullard v. Chrysler Corp., 925 F. Supp. 1180 (E.D. Tex.
1996)
• Plaintiff‟s attorney in a products liability case against
Chrysler moves to withdraw as counsel. Id. at 1183. He has
extensive experience representing plaintiffs against
automobile manufacturers. Id. at 1182. Plaintiff argues
that she will be prejudiced. Id. at 1183. It emerges that his
reason for withdrawing is that Chrysler threatened not to
settle any other case, forcing all of them to trial and
decreasing his profit margin. Id. The Court, referring to
Article II of the Texas Lawyer‟s Creed and the Texas
Disciplinary Rules of Professional Conduct, strongly
chastised counsel for showing more allegiance to Chrysler
than his own clients, for his shifty and evasive demeanor
and appearance, and for his lack of candor in falsely
representing to the Court that his client would not be
prejudiced. Id. at 1184-8.

 ―Morality is simply the attitude we adopt
toward people whom we personally
dislike.‖ -Oscar Wilde

 ―Without civic morality, communities
perish; without personal morality, their
survival has no value.‖ -Bertrand Russell

 ―Ethicsis knowing the difference
between what you have a right to do and
what is the right thing to do.‖ – Potter
Stewart

 ―There ain‘t no right way to do the wrong
thing.‖ – Waylon Jennings

 Some say:
• Ethics is what you have to do.
• Morality is what you should do.

 Others say:
• Ethics is the lowest standard of permissible
conduct.
• Morality is the highest standard of conduct, to
which we should aspire

―Ethical conduct can be codified, but
professionalism must come from within
the lawyer. A lawyer can be ethical but
not professional.‖

James H. ―Blackie‖ Holmes

Civility has been said to be synonymous with professionalism
 One with ―conduct demonstrating civility, honesty, integrity,
character, fairness, competence, ethical conduct, public
service, and respect for the rule of law, the courts, clients,
other lawyers, and unrepresented parties.‖
• New Mexico Commission on Professionalism

 ―Professionalism is grounded in aspirational goals and
traditions that seek to encourage the bar and bench towards
conduct that preserves and strengthens the dignity, honor
and integrity of the law profession.‖
• New Jersey Commission on Professionalism in the Law

Mentor

Referee

Role Model

Agenda-Oriented

Protector of Process

 Occupationally related social knowledge available, against a
institutions established and background of principles and
maintained as a means of theories, and within the context
providing essential services to of possible impact on other
the individual and the society. related conditions or decisions.
 Each profession is concerned  The profession is based on one
with an identified area of need or more underlying disciplines
or function. from which it builds its own
 The profession collectively, and applied knowledge and skills.
the professional individually,  The profession is organized into
possesses a body of knowledge one or more professional
and a repertoire of behavior associations, which, within
and skills. broad limits of social
 Members of the profession are accountability, are granted
involved in decision making in autonomy in control of the
the service of the client, and actual work of the profession
these decisions are made in and the conditions that
accordance with the mot valid surround it.

 The profession has agreed-upon commitment to competence.
performance standards for  Authority to practice in an
admission to the profession and for individual case derives from the
continuance with it. client or the employing
 Preparation for and induction into organization; accountability for the
the profession is provided through competence of the professional
a protracted preparation program, practice with the particular case is
usually in a professional school or a to the profession itself.
college or university campus.  There is a relative freedom from
 There is a high level of public trust direct-on-the-job supervision and
and confidences in the profession from direct public evaluation of the
and in individual practitioners, individual practitioner. The
based upon the profession‘s professional accepts responsibility
demonstrated capacity to provide in the name of his or her profession
service markedly beyond that and is accountable through his or
which would otherwise be her profession to the society.
available.
 Individual practitioners are -Bob Kizlik, Characteristics of a
characterized by a strong service Profession
motivation and lifetime

 ―a duty of a public service of which emolument is a by-
product, and in which one may attain the highest eminence
without making much money‖
 ―a relation as officer of the court to the administration of
justice involving thorough sincerity, integrity and reliability‖
 ―a relation to client in the highest degree of fiduciary,‖ and
 ― a relation to colleagues at the bar characterized by
candor, fairness and unwillingness to resort to current
business methods of advertising and encroachment on their
practice or dealing directly with their clients.‖
-Characterisctics of the legal profession which distinguish it
from business, www.batasnatin.com

Sophistry
 Plausible but fallacious argument

Sophist
 A scholar or thinker, especially one skilled in
devious argumentation
Sophistry
 Derived from the name accord to a group of
professional educators and lecturers in ancient
Greece who turned their attention away from science
and philosophy to rhetoric, politics and the law. This
group introduced the adversary system and trained
its students to argue both sides of cases.

It is often argued that full representation of the client justifies
the use of any device to win the case, including argument to
court and jury that the lawyer knows to be false. Because a
defendant has a right to testify, we are told that the lawyer
should protect that right even at the risk of false testimony.
Only the fact-finder is supposed to safeguard against
perjury. Only the judge and jury are to be concerned with
truth. The glory of the adversary system is to arm the
advocate with any weapon that may succeed.
Humbug! Balderdash!
Who will respect a profession that aspires to deceive and
pretends that its system doe justice by choosing the best
liar?

There is a vague popular belief that lawyers are
necessarily dishonest. I say vague, because when we
consider to what extent confidence and honors are
repose in and conferred upon lawyers by the people,
it appears improbable that their impression of
dishonesty is very distinct and vivid. Yet the
impression is common, almost universal. Let no man
choosing law for a calling for a moment yield to the
popular belief---resolve to be honest at all events;
and if in your own judgment you cannot be an honest
lawyer, then resolve to be honest without being a
lawyer. Choose some other occupation, rather than
one in the choosing of which you do, in advance,
consent to be a knave.

A lawyer sits in the lofty position of making
decisions over people's lives. If he begins to do it
without real thought or does it routinely,
callously, and without regard to the
consequences of his actions, then he is unworthy
of the trust placed in him and is no lawyer--
indeed, he is no advocate and should think about
another line of endeavor: used car salesman or
doctor. A lawyer cannot fight for his client if he is
unconcerned, and striving for your client is the
only reason we are allowed to be advocates.

Lawyers are supposed to be the custodians of a
community's legal and ethical sense. To a significant
extent, both the loss of self respect within the
profession and the loss of public respect for lawyers
reflect the failure of our schools to convey to the young
what law and lawyers have meant in the history of this
country. If the profession wishes to retain its privileges,
lawyers--even above others--must understand why they
have been granted exclusive access to the judicial
processes of government, and why the public has the
right to expect that lawyers will be vigilant in
protecting not only the interests of their clients, but also
the rule of law that protects us all.

 The lawyer is hired to defend a physician without assets or insurance in a
medical malpractice case naming the physician and the hospital at which
the alleged malpractice occurred as defendants.
 The hospital obtains a summary judgment, which leaves the physician as
the lone defendant.
 Shortly before trial, plaintiff‘s counsel approached the physician‘s lawyer
and offers to give the physician (the only remaining defendant) a
covenant not to execute in exchange for the physician‘s in a full-blown
jury trial.
 The physician‘s lawyer is told that the purpose of this agreement is to use
the trial to educate the judge so that he may reconsider his grant of
summary judgment in favor of the hospital.
 The trial court is not informed of this agreement.
 Does this constitute professional misconduct?

In In the matter of Richard A. Alcorn, 41
P.3d 600 (Ariz. 2002), the Arizona
Supreme Court held that the preceding
scenario constituted a ―sham‖ trial and
the associated misleading of the trial
judge was professional misconduct and
constituted several ―serious violations of
duty.‖ Id. at 612

 Yourepresent an investor with claims
against his broker and others.

 You
must proceed in arbitration which
does not allow depositions

 Can you enter into an agreement to file
suit to obtain the depositions?

(a) A lawyer shall not:

(1) make a false statement of material
fact or law to a tribunal

(2) fail to disclose to a tribunal when
disclosure is necessary to avoid
assisting a criminal or fraudulent act…

(a) In representing a client, a lawyer shall
not use means that have no substantial
purpose other than to embarrass, delay
or burden a third person, or use methods
of obtaining evidence that violate the
legal rights of such a person

 The trial court held:
• ―The lawsuit was filed for the sole purpose of attempting to
secure the deposition of [the deponent];

• The lawsuit and issuance of the subpoena constituted a
―fraudulent filing‖ with the court;

• [The attorney] knowingly made a false statement of material
fact or law to the Court by failing to disclose a material fact to
the Court when disclosure of such fact is necessary [TDRCP
3.03(a)];

• [The attorney] used improper methods of attempting to obtain
evidence that violate [the deponent‘s] legal rights; and

• [The] lawsuit was subterfuge.‖

 The appeals court held:
• ―The litigation was filed as if it were seeking a
remedy in the same controversy involving the
pending arbitration, and because this was done
knowingly, it constitutes bad faith. Improper motive
is an essential element of bad faith. An improper
motive is shown by the attempt to use the judiciary
for discovery by knowingly filing a lawsuit
pretending to seek resolution of a controversy when
the suit was not filed for that purpose.‖

Wallace v. Investment Advisors, Inc., 960 S.W.2d 885, 889
(Tex. App.—Texarkana 1997, writ denied)

The attorney for the investor was
personally sanctioned and required to
pay the amount of attorneys‘ fees and
costs expended by the deponent in
connection with the lawsuit

 In a complex, multi-party case, an onerous docket control
order is entered in a case in which you client has real
exposure.
 You conclude that under the docket control order you‘re
client‘s defense will be prejudiced.
 You know that there is case law stating that docket control
orders are not subject to mandamus review, but you believe
that an appeals court would provide relief if you could just
get the story to them.
 You draft a petition for mandamus that omits any reference
to the case law that appears to bar mandamus review. Is that
ok?

(a) A lawyer shall not knowingly
(1) make a false statement of material fact
or law to a tribunal
…
(4) Fail to disclose to the tribunal authority
in the controlling jurisdiction known to the
lawyer to be directly adverse to the
position of the client and not disclosed by
opposing counsel.

 ―Relators completely ignore [the decision] in their filings in
this Court, although filing a thirty-seven page brief
containing three pages of authorities in the index. Relators
did not attempt to explain or distinguish this controlling
authority, nor mention [the case] might be considered to be
contrary to their position.‖
 ―Such failure to disclose pertinent adverse authority might
well be a failure of Relators to deal in good faith with this
Court and a breach of professional ethics.‖
 The Relators were ordered to show cause why they should
not be sanctioned for not acting in good faith by failing to
cite the case.

 A friend calls from Court asking you to check on the status of his motion for leave to
file bankruptcy protection.

 The friend had previously filed several bankruptcy petitions, which had been
dismissed, and was ordered not to file again without leave.

 You call the bankruptcy clerk, who says there is something ―strange about the file.‖
it appears to have been reopened but is not sure if the stay is in effect.

 You then ask a bankruptcy specialist what to do, and are told to ―check the file.‖

 You don‘t check the file and fax a letter to the trial judge in your friend‘s civil case
stating the clerk told you the case had been reopened.

 The trial court grants a continuance in your friend‘s case.

 The bankruptcy court calls you later in the day stating that the case has not been
reopened.

 Should you notify the trial court to whom you sent the earlier fax?

(a) A lawyer shall not:
(1) make a false statement of material fact or law to a
tribunal
(2) fail to disclose to a tribunal when disclosure is
necessary to avoid assisting a criminal or fraudulent act
…
(c) The duties stated in paragraphs (a) and (b) continue until
remedial legal measures are no longer reasonably
possible.
Comment 14: The time limit on the obligation to rectify the
presentation of false testimony or other evidence varies
from case to case but continues as long as there is a
reasonable possibility of taking corrective legal actions
before a tribunal.

 Cohn v. Commission for Lawyer Discipline, 979 S.W. 2d 694
(Tex. App.—Houston [14th Dist.] 1998)(No. 14-97-00678-CV),
rehearing overruled (Oct 22, 1998)
• Under the disciplinary rules, a person‘s knowledge may be inferred
from circumstances. The court held that Cohn knowingly failed to
disclose a material fact to the Court and that the misrepresentations
were made knowingly in violation of Rule 3.02(a)(1).

• The Court also held that Cohn failed to let the Court know when he
knew that the information was not accurate in violation of 3.03© and
Comment 14 to Rule 3.03.

 The six month probated suspension against Cohn was
affirmed.

 Satire directed at Socrates and lawyers
 Depicts Socrates as a Sophist, ―paid to teach his
students the art of contentious argument based on
ridiculous argument.‖
 ―The technique of winning lawsuits is to overcome
the truth by telling lies.‖
 ―Lawyers make a mockery of all morality,
systematically confounding good with evil and evil
with good.‖
 ―Sophistry – the rational power of prose and formal
logic‖
-Robert Gaudet, Jr., Lawyer-Bashing in the Western
Tradition: 350 BC to 1992 BC

 ―His whole life has been one continued insult to good manners and to
decency.‖ – John Adams of Benjamin Franklin
 ―The bastard brat of a Scotch pedlar.‖ – John Adams of Alexander
Hamilton
 He has ―a superabundance of secretions which he could not find whores
enough to draw off.‖ – John Adams of Alexander Hamilton
 ―The man is more mad than ever I thought him and I shall soon be led to
say as wicked as he is mad.‖ – Alexander Hamilton of John Adams
 ―He is not scrupulous about the means of success, not very mindful of
truth and…he is a contemptible hypocrite.‖ – Alexander Hamilton of
Thomas Jefferson
 ―Necessity knows no law; I know come attorneys of the same.‖ – Benjamin
Franklin, Poor Richard‘s Almanack (1734)

 And behold, a lawyer stood up to put him to the test, saying, ―Teacher,
what shall I do to inherit eternal life?‖ He said to him, ―What is written in
the Law? How do you read it?‖ And he answered, ―You shall love the Lord
your God with all your heart and with all your soul and with all your
strength and with all your mind, and your neighbor as yourself.‖ And he
said to him, ―You have answered correctly; do this, and you will live.‖ But
he, desiring to justify himself, said to Jesus, ―And who is my neighbor?‖
Luke 10:25-37
 There are six things that the Lord hates, seven that are an abomination to
him: haughty eyes, a lying tongue, and hands that shed innocent blood, a
heart that devises wicked plans, feet that make haste to run to evil, a false
witness who breathes out lies, and one who sows discord among brothers.
Proverbs 6:16-19
 No one enters suit justly; no one goes to law honestly; they rely on empty
pleas, they speak lies, they conceive mischief and give birth to iniquity.
Isaiah 59:4

 Pettifoggery – coined in the 16th century, refers to the unscrupulous
practice of law. ―They overcharged clients, fomented disputes for
personal gain, claimed fees from both parties in a lawsuit, and helped
themselves at all costs. Curiously enough, the pettifogger closely matches
our stereotypical greedy corporate lawyer.‖ – Robert Gaudet, Jr., Lawyer-
Bashing in the Western Tradition: 350 BC to 1992 BC
 The good lawyer is not the man who has an eye to every side and angle of
contingency, and qualifies all his qualifications, but who throws himself on
your part so heartily, that he can get you out of a scrape. – Ralph Waldo
Emerson (1803-1882)
 I think we may classify the lawyer in the natural history of monsters. – John
Keats (1819)
 I don't think you can make a lawyer honest by an act of legislature. You've
got to work on his conscience. And his lack of conscience is what makes
him a lawyer. – Will Rogers (1927)

Thank You!

The Texas Lawyer‘s Creed:
A Twenty Year Retrospective

Fred Hagans
Hagans, Burdine, Montgomery & Rustay
3200 Travis, 4th Floor, Houston, TX 77006
713.222.2700 ∙ fhagans@hagans-law.com ∙ www.hagans-law.com

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