Academic journal article The Review of Litigation

Ethical Legal Writing

Academic journal article The Review of Litigation

Ethical Legal Writing

Article excerpt

I. Introduction

Some might think that ethical legal writing is an odd topic for an article. After all, is it possible to write unethically? It sure is, and you will see dozens of examples of it in this Article. In fact, nearly the entire Article is devoted to describing the many ways that lawyers have gotten into trouble because of their writing. Lawyers have faced many consequences for poor writing, including court sanctions and fines, bar discipline, civil liability, and public humiliation. But the lawyers and cases in this Article are only the reported ones. Many more lawyers have gotten into trouble for their writing, although they were fortunate enough not to have their cases published.

No one wants to get into trouble for poor writing, I know, and lawyers certainly do not want a published case bearing their names. So in a very real sense, I have put this Article together to scare you. Even if you do not end up being terribly scared, you might end up thinking, "That could have happened to me." I hope that will be enough to get you to take your ethical writing obligations seriously. Here are eight suggestions to help.

II. Research Well

The ABA's Model Rules of Professional Conduct require a lawyer to "provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."1 Does that mean that litigators have to know how to do legal research? Yes it does. An ABA task force said this in 1992: "It can hardly be doubted that the ability to do legal research is one of the skills that any competent practitioner must possess."2 Part of the problem with legal research, though, is knowing when you need to do it in the first place. So consider the story of Smith v. Lewis,3 decided by the California Supreme Court in 1975.

Mrs. Smith sought a divorce from her husband, who had a pension from the State of California.4 She hired attorney Lewis to represent her. In the divorce case, Lewis did not assert a community right to any of the pension benefits. In fact, he did not even research whether a divorcing wife might have a right to a community share of pension benefits. Had he researched the law in that area, he would have seen that it was unsettled, with no clear-cut answer for or against pension benefits as community property. Therefore, Mrs. Smith received nothing from her husband's pension when the divorce was entered. Not long after, attorney Lewis had second thoughts about the legal action that he had taken (or not taken) on Mrs. Smith's behalf, and he filed a motion to apportion the pension benefits. The motion was denied as untimely.

Mrs. Smith then hired a new lawyer and sued Lewis for malpractice. In his defense, Lewis raised the point that the community treatment of pension benefits had been unsettled when he filed the divorce for Mrs. Smith. Too bad, said the California Supreme Court:

But even with respect to an unsettled area of the law, we believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem.5

Since I am, after all, a legal writing teacher, I must point out that the California Supreme Court wrote a very long sentence there-fifty-three words. The justices are all gone by now, I presume, so I will offer a contemporary paraphrase: Even if the law is unsettled and you will not find a clear answer, you still have to do the research. Only after doing the research can you intelligently advise the client.

Something similar happened in the California Supreme Court case of People v. Ledesma,6 decided in 1987. The court held that the criminal defendant had been denied the effective assistance of counsel because his lawyer had not researched the defense of diminished capacity. …

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