In 1989 the justices of the two highest courts of this great State of Texas, disgusted with the bad behavior of a “minority” of Texas lawyers, adopted a missive called The Texas Lawyer’s Creed. It sets forth aspirational rules of conduct using a consistent theme of the lawyer’s duty of honesty, candor and fairness towards clients, opposing counsel and judges.
Little did the justices realize that their Creed contained a fatal omission, a fact that did not come to light for nigh on 30 years.
The Creed, you see, does not address butt shaking.
To be fair, the Creed requires a lawyer to recognize that effective representation does not require antagonistic or obnoxious behavior. But does it contain an outright prohibition on a butt shake? Nope, there is nary a word. A sad omission to be sure.
Nor is there an express prohibition for using the “f” word as a verb in conversation with the opposing counsel. Perhaps the Justices thought the sentence “I can disagree without being disagreeable” would cover that. Alas, that is apparently too vague for some attorneys to grasp.
We might as well address another glaring oversight: the appropriateness of an attorney linking a person’s hairstyle to his sexual activities. It is true that the Creed requires an attorney to avoid disparaging personal remarks against an opposing counsel. We just do not know if the Justices envisioned an attorney making a causal connection between an opposing counsel’s “ponytail haircut” and speculative after-hours behavior.
It is a pretty good bet that the Justices would have been sorely tempted to write a much more detailed creed had they been privy to the allegations of attorney misbehavior in a case pending in federal district court in the Southern District of Texas. In that case, an employment dispute, the plaintiff’s attorney filed a motion for sanctions that accused the opposing counsel of doing those exact actions – butt shake, “f” word, and ponytail remark – during a court-ordered mediation. Although he disputed the allegations, the opposing counsel and his law firm ended up withdrawing from the case. The federal judge wrote an order that opened with the following:
“One of the sentences a judge does not imagine – much less welcome – writing includes the words “butt shaking” in describing a lawyer’s alleged actions at a mediation. Sadly, those words fit here.”
That, of course, is not the first time that an attorney has been publicly called out for over-zealous behavior. Apparently there is no shortage of possible bad acts – some of the less offensive ones include intentionally spilling a drink on piles of original documents during a deposition, making a secret recording of conversations between the opposing attorney and his client, serving notice for a deposition that is scheduled to start less than 12 hours later, substituting pages in a document taken from a court file (in the days before scanning), contacting jurors during a trial, and intentionally violating a “gag” order forbidding any public discussion of a case.
The Lawyers Creed, indeed.
Virginia Hammerle is a Texas attorney whose practice includes estate planning, guardianship and probate. Sign up for her newsletter at legaltalk@hammerle.com. Contact Hammerle Finley Law Firm to schedule a consultation at hammerle.com.
This column does not constitute legal advice.
