The conduct of attorneys practicing in Delaware is governed by the Delaware Rules of Professional Conduct.95 In connection with litigating a case (as with any other aspect of the attorney-client relationship), the lawyer must consult with the client as to the means of reaching an objective. In a civil case, a lawyer must abide by the client’s decision whether to accept an offer of settlement. In a criminal case, the lawyer must abide by the client’s decision as to the plea to be entered, whether to waive the right to trial by jury and whether the client will testify.96
At trial, the lawyer’s role is to present the client’s case with persuasive force. Nonetheless, as an officer of the court, a lawyer owes a duty to the judicial system and to the fair administration of justice. In furtherance of this duty a lawyer, may not knowingly make a false statement of fact or law to a tribunal. Nor may a lawyer fail to disclose to a tribunal a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. A lawyer may not fail to disclose to a tribunal legal authorities in the controlling jurisdiction known by the lawyer to be directly adverse to a position of the client and not disclosed by opposing counsel. A lawyer may not knowingly offer false evidence. If the lawyer has offered material evidence and later learns of its falsity, the lawyer is obligated to take reasonable remedial measures.97
A lawyer may not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. Nor may a lawyer counsel or assist another person to do any such act.98 A lawyer may not falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay or acquiesce in the payment of compensation, or participate in offering any inducement to a witness contingent upon the content of the testimony or the outcome of the case. A lawyer, however, may advance, guarantee or acquiesce in the payment of (i) expenses reasonably incurred by a witness in attending or testifying; (ii) reasonable compensation to a witness for the time lost in attending or testifying; or (iii) a reasonable fee for the professional services of an expert witness.99
At trial, a lawyer should not allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. Nor should a lawyer assert personal knowledge of a fact in issue except when testifying as a witness. It is also improper for a lawyer to express a personal opinion as to the justness of the cause, the credibility of a witness, the culpability of a civil litigant or the guilt or’ innocence of a criminal defendant.100
A lawyer should not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct which is degrading to a tribunal.101 Nor should a lawyer seek to influence or otherwise communicate ex parte with a judge, juror, prospective juror or other officer by means prohibited by law.102 A lawyer should be judicious in the language he or she uses in briefs and other documents filed with the court.103
A lawyer’s duty to the judicial system extends beyond the four walls of the courtroom. It is improper for a lawyer to make an extrajudicial statement that would reasonably be expected to be disseminated through the mass media if the lawyer knows or reasonably should know, that the statement will have a substantial likelihood of materially prejudicing the trial or hearing.104 Examples of potentially prejudicial statements include statements relating to: (i) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; (ii) in a criminal action, the possibility of a plea of guilty to the offense charged or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement; (iii) the results of any test or the refusal of a person to submit to an examination or the identity of the nature of physical evidence expected to be presented; (iv) any opinion as to the guilt of innocence of a criminal defendant or suspect; or (v) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and, if disclosed, would create a substantial risk of prejudicing an impartial trial.105
A lawyer may state without elaboration: (i) the general nature of the claim or defense; (ii) any information contained in a public record; (iii) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except where prohibited by law, the identity of the persons involved; (iv) the scheduling or result of any step in litigation; (v) a request for assistance in obtaining evidence and information necessary thereto; and (vi) a warning of danger concerning the behavior of a person involved when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest In a criminal case, a lawyer may state (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in the apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating officers or agencies and the length of the investigation.106
Beyond conduct proscribed by the Rules of Professional Conduct, the Delaware Supreme Court and the Delaware State Bar Association jointly adopted Principles of Professionalism for Delaware Lawyers on November 10, 2003. The section on litigation conduct provides as follows:
Conduct of Litigation. In dealing with opposing counsel, adverse parties, judges, court personnel and other participants in the legal process, a lawyer should strive to make our system of justice work fairly and efficiently. A lawyer should avoid conduct that undermines the judicial system or the public’s confidence in it, as a truth seeking process for resolving disputes in a rational, amicable and efficient way.
1. Responsible choice of forum. Before choosing a forum, a lawyer should review with the client all alternatives, including alternate methods of dispute resolution. A lawyer should not file or defend a suit or an administrative proceeding without as thorough a review of the facts and the law as is required to form a conviction that the complaint or response has merit.
2. Pre-trial proceedings. A lawyer should use pre-trial procedures, including discovery, solely to develop a case for settlement or trial and not to harass an opponent or delay a case. Whenever possible, stipulations and agreements should be made between counsel to reduce both the cost and the use of judicial time. Interrogatories and requests for documents should be carefully crafted to demand only relevant matter, and responses should be timely, candid and not evasive. Good faith efforts should be made to resolve by agreement objections to matters contained in pleadings, discovery requests and objections.
A lawyer should endeavor to schedule pre-trial procedures so as to accommodate the schedules of all parties and attorneys involved. Agreements for reasonable extensions of time should not be withheld arbitrarily. Only those depositions necessary to develop or preserve the facts should be taken. Questions and objections at deposition should be restricted to conduct appropriate in the presence of a judge.
3. Communications with the Court or Tribunal. A lawyer should speak and write respectfully in all communications with the Court. All papers filed in a proceeding should be as succinct as the complexity of the matter will allow. A lawyer should avoid ex parte communications with the Court on pending matters, except when permitted by law. Unless specifically authorized by law, a lawyer should not submit papers to the Court without serving copies of all papers upon opposing counsel in such a manner that opposing counsel will receive them before or contemporaneously with the submission to the Court.
4. Settlement. A lawyer should constantly evaluate the strength of a client’s legal position and keep the client advised. A lawyer should seek to settle any matter at any time that such course of action is determined to be consistent with the client’s best interest after considering the anticipated cost of continuing the proceeding and the lawyer’s good faith evaluation of the likely result.
5. Appeal. A lawyer should take an appeal only if the lawyer believes in good faith that the Court has committed error, or an appeal is otherwise required.107
Additionally, in 2004 the Superior Court promulgated Expectations of the Superior Court for Attorneys’ Professionalism and Civility in a Courtroom Setting, which adds the following courtroom practices:
• An attorney should always rise before addressing the Court.
• An attorney should always face the bench while addressing the Court.
• If an attorney expects to be late because of another court commitment, he/she should so inform the affected judge as soon as practical.
• An attorney should not address opposing counsel directly without the Court’s permission.
• An attorney should always refer to other counsel by “Mr./Ms._______.”
• An attorney should not address the Court unless appropriately attired. (This includes not wearing an overcoat).
• An attorney should organize witness schedules so as to make the most effective use the Court’s and attorneys’ time.
• An attorney should avoid inappropriate humor and gestures.
• An attorney should wait until the judge has finished speaking before speaking next.
• An attorney should always introduce himself/herself at the time of first interaction with the Court.
• An attorney should begin with “May it please the Court” when making oral arguments, opening statements and closing arguments.
• An attorney should not eat, chew gum or drink beverages (other than water supplied by the Court) in a courtroom and should similarly advise witnesses.
• An attorney should not leave the courtroom or turn his/her back to the Court when a recess is declared until the judge has left the courtroom.108
95. Supr. Ct. R. 61.
96. Del. R. Prof. Cond. 1.2(a).
97. Del. R. Prof. Cond. 3.3(a).
98. Del. R. Prof. Cond. 3.4(a); In re Enna, 971 A.2d 110, 117 (Del. 2009).
99. Del. R. Prof. Cond. 3.4(b).
100. Del. R. Prof. Cond. 3.4(e).
101. Del. R. Prof. Cond. 3.5(c).
102. Del. R. Prof. Cond. 3.5(a),(b).
103. In re Abbott, 925 A.2d 482, 487 (Del.), cert. denied, 552 U.S. 950 (2007); In re Shearin, 765 A.2d 930 (Del. 2000), cert. denied, 534 U.S. 961 (2001).
104. Del. R. Prof. Cond. 3.6(a).
105. Del. R. Prof. Cond. 3.6(b).
106. Del. R. Prof. Cond. 3.6(c).
107. Principles of Professionalism for Delaware Lawyers (Nov. 10, 2003).
108. Expectations of the Superior Court for Attorneys’ Professionalism and Civility in a Courtroom Setting (Apr. 8, 2004).
© 2010 David L. Finger