Disclaimer, the case discussed here is not before me, it is a circuit case with which I am nonetheless familiar. The subpoena discussed was served on the Clerk of the Division of Administrative Hearings.
The records custodian was served with a subpoena for trial. This compelled live attendance of the witness over four hundred miles away, just four business days later (the next Monday). Curiously, the documents listed in the subpoena had already been produced months before. All of the documents were produced under seal, so they were all self-authenticated. It was unclear what benefit could be gained from the custodian’s attendance.
The OJCC counsel (the custodian’s attorney) called the issuing attorney. Emails were sent; messages were left. Calls were not returned. Counsel for the custodian puts aside that day’s work and drafted a motion to quash. Following the rules, more calls were made to discuss the dispute and the motion in good faith before filing. As Phil Collins said, “there's no reply at all, there's no reply at all.” On four days notice, it was impossible to get a hearing on the motion. The OJCC counsel filed it, unsuccessfully asked for a hearing, and left the office for the weekend.
Monday came and went without any word from the issuer. The records custodian did not travel to the trial venue. She could not have, because she was on scheduled leave that Monday, something planned long before the delivery of this subpoena four business days before trial.
The lack of inquiry or contact from the subpoena issuer on Monday was odd, and the subject of some curious discussion that day. Then the curiosity faded with time. Months later, in February, the subpoena issuer sends a letter and tells the custodian that she is still under subpoena and the trial will be next week (5 business days notice this time). No acknowledgement of the objection, the motion to quash or the unreasonableness of the requested presence.
History has taught that this subpoena issuer does not respond to phone calls or emails or motions. I write a letter to the subpoena issuer, with copies to some partners in the firm. The situation is described and conclusions are stated, essentially that the behavior is inappropriate, unprofessional and unappreciated.
I noted in the letter that our Supreme Court revised the Attorney Oath of Admission in 2011. At that time they added “to opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” The motivation for this change is discussed in a Bar News article by Jan Pudlow, essentially “lawyers don’t always play nice.”
The subpoena issuer called back within minutes of my emailing this letter, our first return call. He starts with “I just got this file,” and “I saw the motion to quash in the file, but do not know why it was not responded to when received.” I point out to him that he signed and issued the subpoena himself months ago; he was served with the motion; he was repeatedly called last fall. The “I just got the file” is not going to fly.
He moves to “I signed it, but I sign lots of things,” and suggests that this is all the paralegal’s fault. He promises to counsel her on such situations. This “just because I signed it doesn’t make me responsible” argument is meritless. I reject it out of hand and explain that as the attorney he is responsible for any actions by the paralegal. I also point out that we called repeatedly last fall, and that he knew then of the problem.
He moves next to “I never got any calls.” I offer to get the phone records that document the calls to his office. He retreats to “I never got any messages.” I remind him that he was served with the Motion to quash, and I ask again why he never called or responded upon receipt. He realizes that his “I never got any messages” argument is also not going to fly.
He finally retreats to “let me explain the situation to you.”And then proceeds with “I had been on the job a month then (last fall); I am a newly admitted lawyer after taking the bar exam last July; I was overwhelmed when this and other files were dumped on me.” He gets no sympathy in reply. The “feel sorry for me” argument is his best yet.
I did feel a bit sorry for him, but that is not the point. The point is he has finally told me the truth. I therefore readily accepted his apology and took him at his word that he will release the clerk from the subpoena.
I then stepped out of Deputy Chief Judge mode and slipped into mentor mode. I briefly explain (1) it is never your staff’s fault, monitoring them is your job. (2) Reviewing incoming pleadings is your job. (3) Returning phone messages is your job. (4) Being courteous to parties and non-parties is your job. (5) Fixing problems is your job.
I cautioned him that I have known some good attorneys who were disbarred or suspended because their subordinates or staff acted inappropriately. I tell him of others I have seen disciplined for neglecting responsibilities, like returning phone calls.
I cautioned this young attorney that in this profession our word must be our bond and pointed out the disingenuous (at best) representations he had just made to me of “I just got this file,” which were not true. I reminded him that the only thing he would ever have worth anything in this profession would be his name, reputation and integrity.
I hope I got through to him. There is no room in this profession for discourtesy. When you are on the cusp of trial, certainly issue your subpoenas. Certainly prepare. Certainly be aggressive. But do not forego the courtesy. Some of the most effective trial lawyers I have ever seen were the most courteous with witnesses and parties, even as they eviscerated them on cross. A phone call takes little or no time. The Attorney Oath pledges “fairness, integrity, and civility,” to opposing parties and their attorneys. I pointed out to this young lawyer that no less is appropriate when dealing with witnesses and others.
Do you wonder why attorneys have the reputation that we do? Gallup took a poll and asked “how you would rate the honesty and ethical standards of people” in various fields. Eighty-five percent of respondents rated Nurses “very high.” Police officers received 58% “very high.” Chiropractors received only 38%. Journalists received only 24%. Attorneys? We received only 19%. At least more people rated attorneys “very high” than they rated Insurance Salespeople (15%), Senators (14%), HMO Managers (12%), Stockbrokers (11%), Advertisers (11%), Members of Congress (10%) and Car Salespeople (8%).
Lawyers cannot lie (“I just got this file”). Lawyers cannot equivocate (it’s the paralegal’s fault). I make mistakes every day. My workload is sometimes unbearable and that’s an excuse. But in the end, I just make mistakes. I am human. I recognize and accept that you are also. I expect you will make mistakes and overlook things. I will forgive you, and ask the same of you.
I hope you will join me in accepting these mistakes we make. Own them, admit them, then fix them. I am happy with people if they want to fault me for being imperfect; I can live with that. I cannot accept that people would find me dishonest or unethical however. The “little white lies” lead to bigger problems. There is a workers’ compensation lawyer in Florida whose mother passed away three times in one year recently. Tragic. He got each of his three continuances; he lost his reputation in the process.
What do you care about? I hope you will join me in putting integrity, honesty, civility and courtesy at the top of the list. Whether you are dealing with other attorneys, witnesses, or the public, our civility and courtesy will say it all. As we each act individually, so will the public perceive our profession. Life is too short, and your name is your greatest asset.