April 24, 1969
Ethics Opinon 1969-3
SUBJECT: ADVISING OPPOSING COUNSEL OF INTENTION TO ENTER DEFAULT JUDGMENT. ILL FEELING EXPRESSED IN LETTER
Before taking a default judgment should an attorney advise opposing counsel of the proposed action?
Is it proper for an attorney to send to opposing counsel a letter expressing ill feeling regarding a difference of opinion as to the propriety of conduct of counsel?
Courtesy between lawyers includes advising opposing counsel of the proposed action.
If a member of the legal profession entertains some doubt as to the propriety of conduct of a fellow member, or if a member of one bar association views with distaste the conduct of a member of another bar, the matter should be processed through appropriate professional channels. It should not be made the subject of general correspondence or public record. The image of the lawyer should be upheld and not disparaged by any members of the profession.
Canon 22, which calls for candor and fairness by counsel reads as follows:
"The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness.
"It is not candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the language or the argument of opposing counsel, or the language of a decision or a textbook; or with knowledge of its invalidity, to cite as authority a decision that has been overruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely.
"It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and the presentation of causes.
"A lawyer should not offer evidence which he knows the Court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the Judge arguments upon any point not properly calling for determination by him. Neither should he introduce into an argument, addressed to the Court, remarks or statements intended to influence the jury or bystanders.
"These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice."
"Canon 17 which cautions against ill feeling between lawyers, reads as follows:
"Clients, not lawyers, are the litigants. Whatever may be the ill feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupulously avoided. In the trial of a cause it is indecent to allude to the personal history or the personal peculiarities and idiosyncrasies of counsel on the other side. Personal colloquies between counsel which cause delay and promote unseemly wrangling should also be carefully avoided."
Canon 29 urges lawyers to uphold the honor of the profession:
"Lawyers should expose without fear or favor before the proper tribunals corrupt or dishonest conduct in the profession, and should accept without hesitation employment against a member of the Bar who has wronged his client. The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. The lawyer should aid in guarding the Bar against the admission to the profession of candidates unfit or unqualified because deficient in either moral character or education. He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice."
This opinion involves a case which was litigated. Attorney for plaintiff took a default judgment which was subsequently vacated by the court. Differences of opinion arose between counsel. Counsel for defendant wrote counsel for plaintiff a letter. With appropriate omissions, the letter is as follows:
"I note from my file that you have not answered the cross-complaint on file herein. On November 4, your office called and said you would be answering shortly.
"I further noted that on the 6th day of November at the hearing to set aside the default entered by you, you were informed that you had ten days to file your answer.
"This office extended to you every courtesy with regard to the representation of your client, and we received in return no reciprocal courtesy. In fact, and to the contrary, we have experienced the most underhanded, shameful treatment that we have ever received, and never before from a member of the San Diego County Bar, putting you on a level not quite in parity with that most of us consider normal for Los Angeles.
"You will either have on file by Friday, November 22, your answer, or I shall move the Court to enter your default on cross-complaint. I shall attach a copy of this letter to my declaration in support of such motion.
Attorney for Defendant."
Commenting on the text of this letter counsel for plaintiff makes the following remarks:
"You will note from the letter that it states 'On November 4 your office called and said you would be answering shortly.' This statement is in effect correct in that this Plaintiff's attorney called Attorney for defendant, and said he had just returned from a trip and that he would take necessary steps in regard to the answer shortly and inquired as to whether or not because of his recent absence Attorney for defendant would consider granting additional time if it became necessary. To this inquiry no answer was received from Attorney for defendant.
"The second paragraph of the letter states that on the 6th of November Plaintiff's attorney was informed that he had ten days to file his answer. This is not true. The notice of motion of the defendant, although it had a form of complaint for fraud attached, did not ask leave to file a complaint or cross complaint for fraud, and although this matter might well have been considered, the motion for such purpose was not made nor does the court's minute order so provide, although the order prepared by the Defendant's counsel does so provide. No service of the same on Plaintiff's attorney was made thereafter so that no answer was or could be required of Plaintiff, nor was any reference thereto made in open court. Defendant's counsel did, however, leave the courtroom and address Plaintiff's counsel as follows: 'MISTER: You had better get your answer in on time or I will default you,' or if these are not the exact words used the essence in meaning was as set forth and he did address Plaintiff's counsel only as 'MISTER' without using Plaintiff's counsel's name, which he well knew.
"The third paragraph contains two sentences which need some explanation. The first sentence concerning Attorney for defendant extending to Plaintiff's counsel every courtesy can apply to only one thing and that is his original extension of time to file the amended complaint which was later limited to a time prior to the extension originally requested and granted.
"On the other hand, if the dates are examined, it should be noted that Attorney for defendant was in default in filing his initial demurrer, in failing to answer the first cause of action at any time and I believe also in the time within which he filed the answers to interrogatories propounded by the Plaintiff to Defendant, and if Plaintiff's counsel is not mistaken in the time within which he made the demurrer and motion to strike the amended complaint. He was also in default in any answer to the amended second cause of action as appears from the Judge's ruling on Defense counsel's motion. On none of those occasions was default entered against him."
The Committee is of the opinion that there is nothing in the submitted record that attorney for plaintiff has violated Canon 22.
The Committee regrets the ill feeling between counsel and calls attention to the urgings of Canon 17.
The Committee finds as unacceptable the language in the letter from attorney for defendant, particularly that portion in which disparaging comments are made regarding the Los Angeles Bar.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: The A.B.A. Canons cited are those of the old Canons of Professional Ethics.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.