During the past year, it has been my pleasure to serve as your Newsletter Editor. This special issue brings the total number of original articles to 26. One trend I have noticed is the increasing emphasis that courts and bar associations have placed on civility issues. Unfortunately, this emphasis arises from numerous reported incidents of incivility. These five articles address some of the civility issues encountered in bankruptcy cases, and I commend them to you. Hopefully, this is a theme that will continue and lead to a more pleasant environment in which to practice.
Fondly,
Richard Carmody
Adams and Reese LLP
by Jennifer Kneeland
Linowes & Blocher LLP; Bethesda, Md.
Webster’s Dictionary defines “zeal” as “eagerness and ardent interest in pursuit of something.” Zeal has initiated much debate among legal professionals. What does it mean to be a zealous advocate? Is zealous advocacy even permissible in today’s practice of law?
This article discusses the expectation among clients that their attorneys serve as their zealous advocates, and will present a common scenario under which zealous advocacy could be invoked as an excuse for scorched-earth litigation and personal attacks. It will also offer a framework for the application of zeal in legal advocacy, as well as reasons why clients and the legal profession are best served only when zealous legal advocacy co-exists with civility and professionalism.
Read the full article.
by Gregory M. Taube
Nelson Mullins Riley & Scarborough LLP; Atlanta
Bankruptcy lawyers often deal with unrepresented persons. For example, in more than 10 percent of consumer cases, the debtor has no lawyer. [1] For example, counsel for an unrepresented debtor’s secured creditors may have dealings with the debtor regarding motions for relief from stay or reaffirmation agreements. Likewise, lawyers who represent consumer debtors may have dealings with unrepresented creditors regarding filing proof of claims or reaffirmation agreements or other bankruptcy matters. In business cases, debtor’s counsel must often deal with the unrepresented members of management and unrepresented creditors.
Read the full article.
U.S. Bankruptcy Court (E.D.N.Y.) Central Islip
Nicole D. Mignone
Law Clerk to the Hon. Alan S. Trust
The Bard of Avon expressed a variety of views on the legal profession. We will not repeat here his seemingly dismissive line about lawyers from King Henry VI, [3] for fear that it may be misinterpreted by readers of this article, as it has been for centuries. [4] Instead, as a prism for reflecting light on how civility should be viewed in the legal profession even today, we borrow from The Taming of the Shrew: “And do as adversaries do in law—Strive mightily but eat and drink as friends.” [5]
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by Emily C. Taube
Adams and Reese LLP; Memphis, Tenn.
Many cases are won or lost on discovery. Ironically, this key aspect of litigation is typically subject to minimal judicial control, and lawyers are instead often left to comport themselves in the discovery process with civility, honor and integrity. Unfortunately, it appears that lawyers are increasingly encountering discovery abuse in civil litigation, resulting in more and more judges imposing sanctions—including the ultimate sanction of default judgment in the nonoffending party’s favor—for such abuse. This article will discuss the most frequently encountered discovery abuses, as well as the sanctions that have been imposed by the courts as a result of the same.
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by Gregory Werkheiser
Morris, Nichols, Arsht & Tunnell LLP; Wilmington, Del.
On Dec. 2, 2009, perceptive lawyers may have noticed a small disturbance in the force. This phenomenon was the result of the collective shudder issued by Delaware barred lawyers upon reading a seemingly innocuous letter from a vice chancellor of the Court of Chancery of the State of Delaware. [1] This letter offered a stark reminder that in the Delaware state courts, there is no such role as “local counsel.” [2] Characterizing the Delaware lawyer in a co-counsel relationship as having “fundamental responsibility for the Delaware proceeding,” the vice chancellor instructed that “[i]t is the Delaware lawyer’s responsibility to ensure that the arguments being made are appropriate.” [3] The vice chancellor cautioned further that “[a] Delaware lawyer cannot abdicate his or her obligations or cede them to forwarding counsel.” [4]
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