Legal Authority on Professionalism and Civility

Legal Authority on Professionalism and Civility


La. C.C.P. 371 Duties of an Attorney as an officer of the court
An attorney at law is an officer of the court. He shall conduct himself at all times with dignity and decorum, and in a manner consistent with the dignity and authority of the court and the role which he himself should play in the administration of justice.

He shall treat the court, its officers, jurors, witnesses, opposing party, and opposing counsel with due respect; shall not interrupt opposing counsel, or otherwise interfere with or impede the orderly dispatch of judicial business by the court; shall not knowingly encourage or produce false evidence; and shall not knowingly make any misrepresentation, or otherwise impose upon or deceive the court.

For a violation of any of the provisions of this article, the attorney at law subjects himself to punishment for contempt of court, and such further disciplinary action as is otherwise provided by law.

La. C.C.P. 863 Signing of pleadings, effect.
A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name…

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information or belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. …(emphasis added)

C. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.

D. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction

Borne v. New Orleans Health Care
616 So.2d 236 (La.App. 4th Cir. 1993):
“Article 863 requires the signing, certifying attorney or litigant to make an objectively reasonable inquiry prior to signing the pleading. Diesel Driving Academy, Inc. v. Ferrier, 563 So.2d 898 (La.App. 2d Cir.1990); Loyola v. A Touch of Class, Transp. Service, Inc., 580 So.2d 506 (La.App. 4th Cir.1991); Romero v. Chris Crusta Flying Service, Inc., 587 So.2d 803 (La.App. 3d Cir.1991). Subjective good faith does not satisfy article 863’s duty of reasonable inquiry. Fairchild v. Fairchild, 580 So.2d 513 (La.App. 4th Cir. 1991); Loyola v. A Touch of Class Transp. Service, Inc., supra; Diesel Driving Academy, Inc. v. Ferrier, supra. The rule applies to the signing of pleadings, motions and other papers and imposes upon attorneys and litigants affirmative duties as of the date the document is signed. Fairchild v. Fairchild, supra; Loyola v. A Touch of Class Transp. Service, Inc., supra; Murphy v. Boeing Petroleum Services, Inc. 600 So.2d 823 (La.App. 3d Cir.1992). The affirmative duties are personal and non-delegable. Diesel Driving Academy, Inc., v. Ferrier, supra. The signing attorney must satisfy himself, by application of his own judgment, that the pleading is factually and legally responsible. Id. Article 863 is intended for exceptional circumstances; it is not violated simply because a party’s argument or ground for relief is subsequently found unjustified. Fairchild v. Fairchild, supra; Murphy v. Boeing Petroleum Services, Inc., supra."

"Plaintiff made no concerted effort to even gather any semblance of evidence which could in any manner reasonably support their dastardly allegations against the ___________ lawfirm [sic]. Depositions were cancelled, no personal contacts were made, and nothing worthwhile was pursued in the furtherance of their lawsuit. Plaintiffs, to the contrary, were content to let the allegations stand against the ___________ lawfirm [sic] to suit plaintiffs’ scheming purposes.”

“From a review of the record it can be clearly shown that had the plaintiffs, or their counsel made the slightest inquiry they would have determined without the least bit of difficulty that there existed no legal nor factual basis for the lawsuit…"

"This court cannot tolerate the behavior of the parties who act in an incurious manner and who make speculative and unsupported allegations of fraud and malicious activity against a reputable lawfirm [sic]. And this court imputes bad faith on the part of plaintiffs and their counsel because the truth could have been easily discovered by a simple investigation of the accuracy of the facts.”

"On appellate review, a trial court’s finding as to a sanctionable violation of C.C.P. art. 863 may not be disturbed unless the record furnishes no evidence to support the finding, or the finding is clearly wrong. See Loyola v. A Touch of Class Transp. Service, Inc., supra; Diesel Driving Academy, Inc. v. Ferrier, supra; Murphy v. Boeing Petroleum Services, Inc., supra; Romero v. Chris Crusta Flying Service, Inc., supra. Once a court determines that a violation of C.C.P. art. 863 has occurred, it has considerable discretion as to the type of severity of sanctions to be imposed. Derouim v. Champion Ins. Co., 580 So.2d 1043 (La.App. 3rd Cir.1991), writ denied, 585 So.2d 574 (La.1991).”

In Borne, the plaintiffs alleged in their petition that the attorneys for the defendant made false and malicious statements and provided incomplete and inaccurate information, resulting in the denial of certificates of need to construct and operate nursing home facilities. The court awarded sanctions to the attorneys, in the amount of $82,047.84.

Fairchild v Fairchild
580 So.2d 513 (La.App. 4th Cir.1991):
“Article 863 is derived from Rule 11 of the Federal Rules. Because there is limited jurisprudence interpreting and applying Article 863, (FN3) the Federal decisions applying Rule 11 provide guidance to this court. See, Diesel Driving Academy, Inc. v. Ferrier, 563 So.2d 898 (La.App. 2nd Cir.1990).

Among the factors to be considered in determine whether reasonable factual inquiry has been made are:
1) The time available to the signer for investigation;
2) The extent of the attorney’s reliance on his client for the factual support for the document;
3) The feasibility of a prefiling investigation;
4) Whether the signing attorney accepted the case from another member of the bar or forwarding attorney;
5) The complexity of the factual and legal issues; and
6) The extent to which development of the factual circumstances underlying the claim requires discovery. Diesel Driving, supra,
citing Thomas, supra.

The factors for determining whether reasonable legal inquiry was made include:
1) The time available to the attorney to prepare the document;
2) The plausibility of the legal view contained in the document;
3) The pro se status of the litigant; and
4) The complexity of the legal and factual issues raised.

Diesel Driving, supra, citing Thomas, supra.
"Article 863 is intended only for exceptional circumstances and is not to be sued simply because parties disagree as to the correct resolution of a legal matter. See, Gaiardo v. Ethyl Corporation, 835 F.2d 479 (3rd Cir.1987), citing Morristown Daily Record, Inc. v. Graphic Communications Union Local 8N, 832 F.2d 31 (3rd. Cir.1987). Furthermore, nothing in the language of Rule 11 or Article 863 empowers the district court to impose sanctions on lawyers simply because a particular argument or ground for relief is subsequently found to be unjustified. Gaiardo, supra, citing Golden Eagle Distributing Corporation v. Burroughs Corporation, 801 F.2d 1531 (9th Cir.1986). Failure to prevail does not trigger a sanction award. Gaiardo, supra."

In determining a violation of Rule 11 or Article 863 the trial court should “avoid using the wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion or other paper was submitted.” Gaiardo, supra at 484.”

In Fairchild, an attorney propounded interrogatories although there were no pending proceedings. Opposing counsel objected to the interrogatories as being procedurally improper since there were no pending proceedings at the time. The attorney propounding the interrogatories then filed a motion to compel answers to the interrogatories, at which point the opposing attorney sought sanctions. Although there was no legal basis for the interrogatories to be propounded, the court denied sanctions because of the facts of this particular case. Fairchild involved a custody dispute. The most recent court order granted custody to a particular party with the understanding that the party would continue to seek psychiatric therapy. There were only eight interrogatories, asking only information concerning residents and the party’s continued psychiatric therapy. The court noted that “the slightest justification for the exercise of the legal right precludes sanctions. Only when the evidence is clear that there is no justification for the legal right exercised should sanctions be considered. Any lessor standard would serve to seriously impair the rights of a party as a litigant.” The court found that the interrogatories were in fact not propounded for harassment purposes.

Armond v Fowler
694 So.2d 358 (La.App. 5th Cir.1996).
In Armond, the court ruled that there is "no excuse for failure to present evidence in court of one’s petition at the trial.” Although this was an election challenge where there was not adequate time to engage in thorough discovery or extensive fact finding, the court took note of the fact that the plaintiffs produced no expert testimony and made numerous irrelevant allegations in the petition. Sanctions of $2,500.00 were awarded and affirmed.

See Sternberg v. Sternberg, 695 So.2d 1068 (La.App. 5th Cir.1997); Loyola v. A Touch of Class Transportation Service Inc., 580 So.2d 506 (La.App. 4th Cir.1991); Hester v. Hester, 680 So.2d 1232 (La.App. 4th Cir.1996), writ denied.


La. C.C.P. 864 Attorney subject to disciplinary action
An attorney may be subjected to appropriate disciplinary action for a willful violation of Article 863, or for the insertion of scandalous or indecent matter in a pleading.

La. C.C.P. 964 Motion to Strike
The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.

La. C.C.P. 964 Motion to Strike
The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.

Uniform Rule 2-12.4, Courts of Appeal
The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.”

Galle v Orleans Parish School Board
623 So.2d 692 (La.App. 4th Cir. 1993)

ADMONITION:
The issue of civility and professional conduct is of great institutional concern in the administration of justice. Every jurisdiction, including Louisiana, has rules to minimize unnecessary contention, abusive litigation and acts that range from incivility to obstruction of justice. The Louisiana lawyer’s oath at admission requires attorneys to maintain the respect due to courts of justice and judicial officers and to abstain from all offensive personality. Rule 3.4 of The Louisiana Rules of Professional Conduct contains a section entitled “Fairness to Opposing Party and Counsels” which sets forth the standards of professionalism. Article 7 of that code states “I will not engage in personal attacks on other counsel or the court…and will not make unfounded allegations of unethical conduct about other counsel.” This rule is in addition to article 3 which states, “I will conduct myself with dignity, civility, courtesy and a sense of fair play.”

"We believe that a lawyer’s conduct should be characterized at all times by the personal courtesy and professional integrity enunciated in the rules above. The truth seeking adversarial process is designed to resolve human and societal problems in a civilized, rational and efficient manner. Conduct that may be characterized as uncivil, abrasive, abusive, hostile, dishonest or obstructive interferes with the fundamental goal of resolving disputes in a civilized, rational and efficient manner. Such conduct wastes limited judicial resources, increases transactional costs, delays justice and causes loss of public confidence in the judicial system. WE cannot tolerate lawyers’ conduct, toward the court and toward other lawyers, which violates these standards."

"Under the Uniform Rules of the Appellate Courts of this State, attorneys are required to submit a brief which is “free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof.” A violation of this rule shall subject the author of the brief to punishment for contempt of court. Uniform Rules of the Courts of Appeal 2-12.4."

"In reviewing plaintiff counsel’s brief, we look to both the content of the brief and any factual support for those statements to determine whether the material included in the brief violates Rule 2-12.4. The content of plaintiff’s brief is detailed and profuse with allegations of professional misconduct, unethical and illegal behavior. Such allegations are insulting and offensive. Furthermore, these scandalous allegations are compounded by the fact that they are totally uncorroborated by any evidence. Thus, without any record evidence to support such offensive allegations, plaintiff counsel’s brief is offensive to this court and in violation of Rule 2-12.4.”

Legal Authority on Professionalism and Civility
Federal Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

(a) Signature.
Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An undersigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(b) Representations to Court.
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, -

1. it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

2. the claims, defenses, and other legal contentions therein are warranted by existing law or by nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

3. the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity based on a lack of information or belief.

4. the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions.
If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorney, law firms, or parties that have violated subdivision (b) or are responsible for the violation.


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