CIVILITY IN CIVIL PRACTICE Thomas S. Biggs Inns of Court April 15, 2008

1. CIVILITY IN CIVIL PRACTICEThomas S. Biggs Inns of Court April 15, 2008 Judge Daniel Monaco Judge Vince Murphy Bradley S. Donnelly Maria I. Barbosa David L. Dawson Fitzgerald A. Frater Jessica I. Horowitz Angela M. Miller Patrick G. White Chuck Zundel

2. PROFESSIONALISM’S NEW FOCUS Bradley S. Donnelly

3. The Henry Latimer Center for Professionalism • Definition of Professionalism • As a lawyer, I will aspire . . . to achieve the excellence of our craft . . . that permit[s] me to be the moral voice of clients to the public – in advocacy, while being the moral voice of the public to clients in counseling.

4. OATH OF ADMISSION TO THE FLORIDA BAR THE GENERAL PRINCIPLES WHICH SHOULD EVER CONTROL THE LAWYER IN THE PRACTICE OF THE LEGAL PROFESSION ARE CLEARLY SET FORTH IN THE FOLOWING OATH OF ADMISSION TO THE BAR, WHICH THE LAWYER IS SWORN ON ADMISSION TO OBEY AND FOR THE WILLFUL VIOLATION TO WHICH DISBARMENT MAY BE HAD.

5. I DO SOLEMNLY SWEAR: I will support the Constitution of the United States and the Constitution of the State of Florida; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval; I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice. So help me God.

6. CREED OF PROFESSIONALISM I revere the law, the judicial system, and the legal profession and will at all times in my professional and private lives uphold the dignity and esteem of each. I will further my profession’s devotion to public service and to the public good. I will strictly adhere to the spirit as well as the letter of my profession’s code of ethics, to the extent that the law permits and will at all times be guided by a fundamental sense of honor, integrity, and fair play. I will not knowingly misstate, distort, or improperly exaggerate any fact or opinion and will not improperly permit my silence or inaction to mislead anyone. I will conduct myself to assure the just, speedy and inexpensive determination of every action and resolution of every controversy. I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy. I will respect the time and commitments of others. I will be diligent and punctual in communicating with others and in fulfilling commitments. I will exercise independent judgment and will not be governed by a client’s ill will or deceit. My word is my bond.

7. Rules of Professional ConductPreamble: A Lawyer’s Responsibilities • Lawyers are officers of the court and they are responsible to the judiciary for the propriety of their professional activities. • Within this context, the legal profession has been granted powers of self-government. Self-regulation helps maintain the legal profession’s independence from undue government domination. • Thus, every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. • Neglect of these responsibilities compromises the independence of the profession and the public interest it serves.

8. Code of Judicial Conduct • Canon 3. A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently • 3(B)(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others whom the judge deals in an official capacity, and shall require similar conduct of lawyers . . . and others subject to the judge’s direction and control.

9. DEPOSITION ABUSE Fitzgerald A. Frater Angela M. Miller David L. Dawson

11. DEPOSITION ABUSESGOING TOO FAR • Hostile, uncivil and vulgar conduct • Henry John Martocci demeaned opposing party and her counsel, Diana Figueroa, belittling and humiliating her, with comments that she did not know the law or the rules of procedure, that she needed to go back to law school, that she was a "stupid idiot“ and a "bush leaguer“, that depositions were not conducted according to "girl's rules“, and that her client was a "nut case." • Mr. Martocci also made demeaning facial gestures and stuck out his tongue at the opposing party and Ms. Figueroa • Martocci received a reprimand and probation. Florida Bar v. Martocci, 791 So. 2d 1074-76 (Fla. 2001). • Impeding, delaying and frustrating fair examination • Failure to answer and intentionally evasive answers

12. I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy.

13. FEDERAL RULES OF CIVIL PROCEDURE • Fed.R.Civ.P. Rule 30 • 2000 Amendment • Rule 30(d)(3) • If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it MAY impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof. • “Paragraph (3) …authorizes the court to impose an appropriate sanction on any person responsible for an impediment that frustrated the fair examination of the deponent. This could include the deponent, any party, or ANY OTHER PERSON involved in the deposition.”

14. FEDERAL RULES OF CIVIL PROCEDURE • Fed.R.Civ.P. Rule 30 • Rule 30(d)(4) • At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court…may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

15. LOCAL RULES REGARDING DEPOSITION ABUSES • Middle District of Florida- None • Northern District of Florida- None • Southern District of Florida- Rule 30 • “The purpose of this rule is to curb unprofessional conduct at depositions.” • Sanctions for Abusive Deposition Conduct • The court, if it anticipates deposition abuse, may order that any deposition be taken at the courthouse or special master’s office so that, at the request of any party, witness, or counsel, any dispute may be heard and decided immediately by the court or special master. Rule 30.1C

16. Florida Rules of Civil Procedure • Rule 1.310(c) “…Any objection during a deposition shall be stated concisely and in a nonargumentative and non-suggestive manner…” • Rule 1.310(d) “At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party…the court…may order the officer conducting the examination to cease forthwith…or may limit the scope and manner of the taking of the deposition…” (emphasis added)

17. Florida Rules of Professional Conduct • None regarding deposition abuses

18. 20th Judicial Circuit Rules • Adopted Standards of Professional Courtesy and Conduct on May 8, 2000 • Established Peer Review Program • Designed to supplement and not supplant the Standards of Courtroom Decorum set forth in Administrative Order 2.13

19. DEPOSITION ABUSESNOT GOING FAR ENOUGH I WILL EXERCISE INDEPENDENT JUDGMENT AND WILL NOT BE GOVERNED BY A CLIENT’S ILL WILL OR DECEIT. I WILL NOT KNOWINGLY MISSATE, DISTORT, OR IMPROPERLY EXAGGERATE ANY FACT OR OPINION AND WILL NOT IMPROPERLY PERMIT MY SILENCE OR INACTION TO MISLEAD ANYONE.

21. SUBSTANCE ABUSE Patrick G. White

22. SUBSTANCE ABUSE I revere the law, the judicial system, and the legal profession and will at all times in my professional and private lives uphold the dignity and esteem of each. I will maintain the respect due to courts of justice and judicial officers. I will respect the time and commitments of others. I will be diligent and punctual in communicating with others and in fulfilling commitments

23. Las Vegas Lawyer-mistrial by denial (and proof) of intoxication

24. The Morning Lawyer* * “The Morning Lawyer” materials were used with permission of The Florida Bar, and may be obtained for future presentations from same. **Rules cited therein are the Rules Regulating the Florida Bar, Rules of Professional Conduct.

25. Referrals to Florida Lawyers’ Assistance, Inc., are also appropriate for cases of suspected abuse. • See, Turn to F.L.A. for help -View From The Bench, by Judge Christine Greider, Adverse Witness, April 2008, page six (“substance abuse, compulsive behavior and psychological problems are treatable illnesses rather than moral issues”). www.fla-lap.org 800-282-8981 • Next three slides provided courtesy of the Florida Bar present the article: “War on Addiction,”, also found at: www.newsweek.com/id/80461

26. War on Addiction

27. War on addiction (cont’d.)

28. War on addiction (cont’d.)

29. METADATA AND ITS INADVERTENT DISCLOSURE Maria I. Barbosa

30. METADATA: THE FUTURE IMPACT OF INVISIBLE DATA ON E-DISCOVERY IN FLORIDA by Nicole O’NealDecember, 2007Volume 81, No. 11 • Metadata: A Brief Definition • The official definition of metadata is “information about a particular data set which describes how, when, and by whom it was collected, created, accessed, modified and how it is formatted.” • Metadata can routinely reveal the original authors of the document, the firm name, the computer name of the drafting computer, the file location on the drafting computer, document revisions and versions, file properties, hidden text, hyperlinks, initials of the drafter, network or server name of the firm, undo/redo history, comments on the document, and tracked changes.

31. Ethics Opinion 06-2 The Florida Bar implemented Ethics Opinion 06-2 on September 15, 2006 in response to the number of questions regarding metadata. The opinion outlines the ethical duties of lawyers when they send and receive electronic documents from other lawyers in the course of representing their clients. The opinion states: • It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications. • It is the recipient lawyer’s concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata information relating to the representation of the sender’s client that the recipient knows or should know is not intended for the recipient. Any such metadata is to be considered by the receiving lawyer as confidential information which the sending lawyer did not intend to transmit. See, Ethics Opinion 93-3 and Rule 4-4.4(b), Florida Rules of Professional Conduct, effective May 22, 2006. • If the recipient lawyer inadvertently obtains information from metadata that the recipient knows or should know was not intended for the recipient, the lawyer must “promptly notify the sender.”

32. Ethics Opinion 06-2 • The opinion further notes that lawyers may need to pursue continuous “training and education in the use of technology in transmitting and receiving electronic documents in order to protect client information under Rule 4-1.6(a).” Metadata is an inherent part of every electronic document. Therefore, to send the electronic document requires sending the metadata embedded within it.

33. Rule 4-1.6(a) and subsection (1) • Pursuant to Rule 4-1.6(a) and subsection (1) of the opinion, the lawyer can take reasonable precautions to protect the client by employing features and programs that will remove most of the metadata in an electronic document. Also, when informing clients of the risks inherent in transmitting electronic documents, the lawyer can address concerns pertinent to metadata before obtaining client consent. However, both of these “special measures” may not be necessary if subsection (2) of the opinion affords a reasonable expectation of privacy to electronic documents that shields metadata from the risks associated with inadvertent disclosure. Since receiving lawyers cannot mine electronic documents for protected information in the metadata, sending lawyers may not be required to take measures to conceal or remove it.

34. Rule 4-4.4(b) • Rule 4-4.4(b) only applies to “documents” and may not be applicable to inherent parts of the document (i.e., metadata). If Rule 4-4.4(b) is applicable, it could not be efficiently implemented. Of the lawyers aware of the existence of metadata, few will spend the time and resources necessary to warn sending attorneys that the metadata in the electronic document they received may reveal protected information. Again, the author recognizes the utility of Ethics Opinion 06-2. If receiving lawyers are prohibited from mining the document’s metadata in the first place, then they will not encounter protected information in the metadata and issues relevant to Rule 4-4.4(b) should not arise. If they encounter this information, they have an obligation under subsection (3) of the opinion to promptly notify the sender.

35. Duty to Comply vs. Violation of Ethics • Uncertainty will arise when lawyers are faced with a duty to comply with these rules at the risk of violating their ethical obligations to safeguard protected and confidential information. Therefore, Florida lawyers must be cognizant of metadata’s existence in order to understand the impact it has on the discovery process and on their client’s rights.

36. SANCTIONS Chuck Zundel

37. 72 Reported Cases of Disciplinary Actions from January 2008 to April 1, 2008The Florida Bar News

38. Examples of Transgressions • Drug Crimes and Non-Monetary Criminal Transgressions • DUI and drug possession • Child pornography and child abuse • Matters of Money and Trust Accounts • A bright-line distinction as to consequences between violations bearing upon failure to maintain adequate trust account records and misappropriation of funds for personal use and gain • Misappropriation of large sums of money • Mail fraud and income tax evasion • Fabricating claims and submitting fraudulent invoices for legal work • Competently Representing and Communicating with Client; Candor with the Court • Abandoning practice and failure to notify or protect clients • Accepting cases and practicing while suspended • Violating Court order prohibiting involvement by helping draft a pro se brief • Failure to respond to discovery after repeated directives • Taking fees; no significant activity • Misrepresenting assets and relationship in personal bankruptcy

39. SANCTIONS • Lawyer/client sanctioned $29,000 for client’s “profanity-laced” deposition Lawyer, Client Sanctioned $29K for Client’s Profanity-Laced Deposition, ABA Journal Law News Now, March 5, 2008, discussing GMAC Bank v. HTFC Corp.

41. PUBLIC PERCEPTION OF ATTORNEYS Jessica I. Horowitz

42. Please see The Florida Bar website www.flabar.org and access Ethics Opinion/Advertising Regulation and Information/Examples of Complying and Non Complying ads

43. “Life’s Short. Get a Divorce.” Billboard

44. Public Perception of Attorneys • Advertising • An attorney may not solicit prospective clients through Internet chat rooms, defined as real time communications between computer users. OPINION A-00-1 (August 15, 2000)

45. January 1, 2008: Bar News Article • Action preventing online lawyers from answering questions nixed. • Review committee on Professional Ethics to review chat room advertising issue • Opinion on lawyers on chat rooms to be reconsidered

46. CONCLUSION " While serving as advocates for their clients, lawyers are not required to abandon notions of civility. Quite the contrary. . . [C]ivility is an essential part of effective advocacy. Professionalism's main building block is civility and it sets the truly accomplished lawyer apart from the ordinary lawyer." Chief Justice Robert Benham of Georgia Supreme Court, Butts v. State, 546 S. E. 2d 472, 486 (Ga. 2001).

47. CITES • Florida Rules of Civil Procedure.pdf • Florida Rules of Professional Conduct.pdf • Local Rules for the Southern District.pdf • Standards of Professional Courtesy in the 20th Judicial Circuit.pdf • The Florida Bar v Martocci.pdf • Lawyer, Client Sanctioned $29K for Client’s Profanity-Laced Deposition | ABA Journal - Law News Now • GMAC Bank v HTFC Corp.pdf • Metadata The Future Impact of Invisible Data on E Discovery in Florida.pdf

48. Brought to you by the following: • Judge Vince Murphy • Judge Daniel Monaco • Bradley S. Donnelly—Treiser, Collins & Vernon • Maria I. Barbosa—Cohen & Grigsby • David L. Dawson—Bond, Schoeneck and King • Fitzgerald A. Frater— Frater Law Firm, P.A. • Jessica I. Horowitz- Legal Research Consultants • Angela M. Miller—The Livingston Firm • Patrick G. White– Porter Wright Morris & Arthur • Chuck Zundel—Bond, Schoeneck and King