This article was prepared by Francis G.X. Pileggi and Rae Ra of the Delaware office of Lewis Brisbois

Last week, the Delaware Court of Chancery published its Guidelines on Attorney Civility (the “Guidelines”), to emphasize the “inveterate tradition of collegiality that remains a hallmark of the Delaware bar.” Delaware practitioners refer to this as the “Delaware Way.” Francis was quoted in an article by Law360 last week about the new Guidelines.

More than just platitudes, the Guidelines offer specific and practical examples of civility (and incivility) in depositions, hearings, negotiations, and more, as well as sanctions proportionate to behavior that falls short of the Court’s standards. The Guidelines also include an addendum of caselaw to support the Court’s expectations, including a case in which counsel was fined $5,000 for noticing a deposition in the middle of opposing counsel’s family vacation and refusing to negotiate an alternate date. And to be sure, these guidelines apply not only to Delaware counsel, but also to outside counsel who are admitted pro hac vice to practice in the courts of Delaware.

A definition of the “Delaware Way” does not always lend itself to mathematical precision, but the Guidelines show that zealous advocacy in Delaware encompasses respect for the Court, opposing parties, and is grounded in dignity and courtesy–which the courts take seriously.

Several existing Delaware standards form the foundation for these new guidelines.  See, e.g., Guidelines for Persons Litigating in the Court of Chancery and Principles of Professionalism for Delaware Lawyers (last revised Nov. 2003).

Below are some highlights from the Guidelines:

  • Examples of Civility/Professional Conduct:
    • “Attempting to resolve or minimize a disagreement through a phone call to opposing counsel before resorting to letters or email communications.”
    • “Responding promptly to communications from opposing counsel, even if only to acknowledge the communication and to indicate that a substantive response will be forthcoming by a date certain.”
    • Written communications that are “free of inflammatory rhetoric or disparagement.”
    • “Adopting conciliatory language in contentious legal disputes to facilitate resolution.”
  • Examples of Incivility/Unprofessional Conduct:
    • “Engaging in ‘chippy’ or antagonistic email exchanges with opposing counsel” that do not advance resolution of the issues.
    • “Making disparaging comments [during deposition] such as calling questions ‘ridiculous’ or ‘incoherent.’”
    • “Burdening the Court with disputes over immaterial noncompliance with procedural rules that does not impair the fair or efficient resolution of the case.”
    • “Failing to provide reasonable scheduling accommodations.”
  • Examples of Potential Consequences of Incivility:
    • Sanctions or fines imposed for “frivolous or abusive filings”
    • Fee shifting
    • Adverse rulings
    • Mandatory ethics training
    • Revocation of pro hac vice admission

When Delaware counsel work with non-Delaware counsel, tensions may arise when Delaware counsel refuse a request to take action that does not comply with the “Delaware Way.”  We addressed this situation in another article: Delaware Practice and Procedures for Non-Delaware Lawyers – and Working with Local Delaware Counsel