San Jose Attorney - Almaden Times Articles

Respect Vs. Aggressive Representation May Be Tough Line To Draw

This week's question: I recently had a case in court that did not turn out very well. I am convinced that it was because my attorney at the time was not very aggressive. He was always so overly respectful that it really resulted in no representation at all. What I would like to know is whether there are written rules that attorneys must follow when it comes to respect compared with aggressive representation.

/s/ Andy A., Almaden Valley 

Dear Andy- You have raised a good question, Andy. Let me see if I can address it properly. From the moment your trial started out in the courtroom, you noticed that the bailiff said in a loud voice "All rise" when the judge came in. This is a very old tradition that is based on respect for the judge and the law. Just where one draws the line between respect and aggressive representation is often a matter of degree.

Your attorney can be very aggressive and do a great job representing you and at the same time be very respectful at all times. And yes, there are many written rules that attorneys must follow when it comes to respect within our system of justice.

One of those rules is California Business and Professions Code Section 6068. It provides in part as follows: "It is the duty of an attorney to do all of the following: (b) To maintain the respect due to the courts of justice and judicial officers." That general duty of respect is almost always a constant theme in our courtrooms. If you stop and think about it, I am sure you would agree that you would not like someone judging your case if you upset him or her. This just would not make sense. It might be somewhat like pouring gasoline on a fire.

So, your attorney walks a tightrope sometimes between respect on the one hand and aggressive representation on the other hand. And this respect aspect carries into other areas as well. For example, your attorney cannot knowingly file any court documents that contain false statements or allegations. And of course your attorney cannot file any forged documents with the court.

Business and Professions Code Section 6068(f) states that it is the duty of an attorney to advance no fact that is prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged. If your attorney would make an unsupported assertion in court that the judge was biased toward you, it could result in contempt proceedings being brought. And an attorney may breach his or her duty by making insulting remarks about judges in briefs filed with the court of appeal.

I do not think I would try to argue that the judge acted "unlawfully" or "illegally" or had become a "party to the theft" of the client's property. More examples of improper behavior could be given, but much of it comes down to just plain old fashioned respect.

If you would want to read California Business and Professions Code Section 6068 for yourself feel free to do so by entering that information in your favorite search engine box and entering "go". It should be on your computer monitor is less than a second. And as I always add, you will want to discuss with your attorney how this particular provision may or may not apply to your specific situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Some Do's And Don'ts For Your Lawyer To Keep In Mind

This week's question:

I think I have a pretty good lawyer, but she's always doing little favors for the other side-without any real reason. Like agreeing to postpone a deposition because the other attorney said he had a "scheduling conflict" that day. Why do you attorneys do things this way? After all, we pay you a lot of money to fight for us!!

/s/Tracy T., Almaden Valley

Dear Tracy- You emailed in a great question, Tracy. Thanks for that. I will try to answer it properly. It has been my experience that most attorneys try to get along and do our job professionally and efficiently, keeping in mind the client's best interests. Oh I know, some attorneys have adopted a "scorched earth policy" where they "fight" for everything, only to end up costing everyone more money-on both sides.

There are many guidelines that are available to us in the practice of law. These guidelines include the American Bar Association, State Bar of California, and our local Santa Clara County Bar Association. Our local Santa Clara County Bar Association, of which I have been a member since 1970, has published a "Code of Professionalism."

Although it is a bit longer than this column allows, some of the key provisions are as follows:

1. A lawyer should always be mindful that the law is a learned profession and that among its goals are devotion to public service, improvement of the administration of justice, and the contribution of uncompensated time and civic influence on behalf of persons who cannot afford adequate legal assistance.

2. A lawyer should work to achieve his or her client's lawful and meritorious objectives expeditiously and as economically as possible in a civil and professional manner.

3. A lawyer should understand and advise his or her client that civility and courtesy in scheduling meetings, hearings, and discovery are expected as professional conduct.

4. Consistent with existing law and court orders, a lawyer should agree to reasonable requests for extensions of time when the legitimate interests of his or her client will not be adversely affected.

5. The timing and manner of service of papers should not be calculated to disadvantage or embarrass the party receiving the papers.

6. Written materials submitted to the court should always be factual, concise, and accurately state current law and fairly represent the parties' position without unfairly attacking the opposing party or opposing counsel.

7. A lawyer should at all times be civil, courteous, and accurate in communicating with adversaries, whether in writing or orally.

8. A lawyer should conduct discovery in a manner designed to ensure the timely, efficient, cost effective and just resolution of a dispute.

9. Motions should be filed or opposed only in good faith and when the issue cannot be otherwise resolved.

10. A lawyer should raise and explore the issue of settlement and alternative dispute resolution in every case as soon as the case can be evaluated.

11. All matters should be handled with due respect for the rights of privacy of parties and non-parties.

12. Lawyers should conduct themselves with clients, opposing counsel, parties and the public in a manner consistent with the high respect and esteem which lawyers should have for the courts, the civil and criminal justice systems, the legal profession and other lawyers.

13. A lawyer should ensure that all business transactions and agreements are negotiated, documented and consummated in an atmosphere of cooperation and with informed authority of the client.

14. In family law proceedings, a lawyer should seek to reduce emotional tension and trauma and encourage the parties and lawyers to interact in a cooperative atmosphere, and keep the best interests of the children in mind.

15. A lawyer representing a parent should consider the welfare of a minor child and seek to minimize the adverse impact of the family proceeding on the child.

16. A lawyer should not participate in a child custody or visitation dispute motivated by financial or tactical objectives of the client.

17. A lawyer for one of the parents should not meet with, confer with, either in person or by telephone, or discuss the litigation with the minor child or children of the parent/client.

More "do's and don'ts" could be listed, Tracy, but space limitations to do not allow for this. I hope the above information is helpful. Just so you know that your attorney can be very assertive, pro-active, and effective and still stay within our professional guidelines.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.