The Delaware Supreme Court, in two opinions published this month, addressed issues of attorney conduct that should be of broad interest.
In the case of In Re Abbott, read opinion here, the Delaware Supreme Court addressed the propriety of rhetorical extremes contained in a brief, that the trial court had stricken sua sponte, after concluding that the arguments crossed the line of acceptable conduct. The Supreme Court affirmed. Delaware’s high court quoted verbatim from some of the language it found objectionable and reasoned that certain conduct is so unprofessional that it becomes unethical as well, in this case violating Rule 8.4(d) which prohibits professional misconduct that is prejudicial to the administration of justice. (An issue not addressed by the court, but which most lawyers should ask, is whether such conduct among lawyers as occurred in this case, outside the context of litigation, could also violate the ethical rules.)
The high court found that the arguments in the brief went beyond “merely” unprofessional, and that the rules were violated because the pleadings filed with the court contained “unnecessary invective and rhetoric, and were obnoxious [as well as] unnecessarily sarcastic and strident in tone.” The court noted that the duty to the tribunal takes precedence over the interests of a client. Former U.S. Supreme Court Justice Sandra Day O’Connor was quoted in the opinion saying that “incivility disserves the client because it wastes time and energy – – time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent.” The Supreme Court cited a prior opinion of 15 years ago when it stated that “simply put, insulting conduct toward opposing counsel, and disparaging a court’s integrity are unacceptable by any standard.” The court further reasoned that “zealous advocacy never requires disruptive, disrespectful, degrading or disparaging rhetoric. The use of such rhetoric crosses the line from acceptable forceful advocacy into unethical conduct that violates the Delaware Lawyers’ Rules of Professional Conduct.” Thus, the Delaware Supreme Court is now on record as ruling that disrespectful, degrading or disparaging rhetoric violates the ethical rules that apply to lawyers. Although beyond the scope of the opinion, I mention as an aside, the truism incorporated in the rules that the assistants of lawyers are not permitted to violate the rules that the lawyers themselves are required to uphold.
Separately, this month the Delaware Supreme Court found that a Pennsylvania lawyer who did not have an office in Delaware, was still improperly "practicing law in Delaware" when she provided advice to Delaware clients and engaged in other patterns of behavior that "established a systematic and continuous presence in Delaware for the practice of law in violation of Rule 5.5(b)". In Re Tonwe, read opinion here. The court’s penalties included a permanent prohibition against being admitted pro hac vice in any Delaware proceeding.