An attorney should practice appropriate behavior and attitude in the courtroom, not only because it is required by the Rules of Professional Conduct, but also because it makes an attorney a more effective advocate.
I. Proper Attire
A lawyer should dress professionally. Appearing in the courtroom disheveled, or wearing tight –fitting clothing, short skirts, or t-shirts is unprofessional. Not wearing the proper attire or not being well-groomed is demeaning to the legal profession and is disrespectful to the court. See Sandstorm v. State, 309 So. 2d 17 (Fla. 4th DCA 1975) (affirming court’s order requiring appellant to wear a tie in court, and appellant’s refusal to comply was not befitting a member of the bar).
II. Being on Time
An attorney should be mindful of time constraints and remember that a deposition, hearing, trial or conference involves the time and efforts of others. An attorney should always strive to be punctual. If an attorney knows that he or she will be delayed, the attorney should notify the court and other parties of his or her expected arrival time. If the court believes that an attorney is willfully late, the proper procedure is to hold the attorney in direct criminal contempt for an offense against authority or dignity of the court. See State v. Harwood, 488 So. 2d 901 (Fla. 5th DCA 1986).
III. Distracting Behavior
A lawyer should avoid conduct or comments that are aimed at distracting the court and jury. A lawyer shall not engage in conduct intended to disrupt the tribunal. See FL ST BAR Rule 4-3.5(c). Examples include exaggerated facial expressions, eye rolling, sighing, pointing at a witness or other counsel, scratching, rattling change or keys, shouting, pounding on the table, and constantly shuffling and fumbling with papers. In addition, a lawyer should be aware that his or her client is not irritating or distracting the jurors and/or judge. Moreover, lawyers should always turn off their cell phones upon entering the courtroom.
IV. Delay
Although it is proper for an attorney on occasion to seek postponements for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation. An attorney should not delay litigation in order to realize financial or other benefit, or simply for convenience. A lawyer should make reasonable efforts to expedite litigation consistent with the interests of the client. FL ST BAR Rule 4-3.2.
V. Respect to the Court
To respect the court is to respect the legal process. An attorney should always stand when addressing the court. An attorney should make his or her comments to the court, rather than directly to opposing counsel. The attorney must maintain a respectful attitude toward the court, even when questioning the propriety of a ruling. See Comment to FL ST BAR Rule 4-3.5. Counsel should also listen to and follow the instructions given by the court concerning that particular judge’s court room procedures. An attorney’s failure to follow the court’s instructions could result in criminal contempt. See Soven v. State, 622 So. 2d 1123 (Fla. 3d DCA 1993) (affirming trial court’s finding that attorney was guilty of direct criminal contempt for failure to obey the trial court’s order to approach the bench).
VI. Attacks on Opposing Counsel
When addressing opposing counsel, an attorney should always be respectful. Personal attacks on opposing counsel are improper and go beyond the boundaries of zealous advocacy. Attacks on opposing counsel are highly inappropriate and impermissible. In addition, such attacks can lead to a new trial and deprive a party of a fair trial. See Lewis v. State, 780 So. 2d 125 (Fla. 3d DCA 2001) (reversing defendant’s conviction and sentence because the repeated attacks on defense counsel’s credibility deprived the defendant of a fair trial). Many courts are becoming more sensitive to this type of misconduct. See D’Ambrosio v. State, 736 So. 2d 44 (Fla 5th DCA 1999) (referring the matter to the Florida Bar and reversing the conviction and remanding for a new trial based on prosecutorial misconduct for improperly attacking the defense and defense counsel).
VII. Honesty
A lawyer should always be truthful to the court and avoid offering evidence that the lawyer reasonably believes to be false. An attorney should always practice candor toward the tribunal. See FL ST BAR Rule 4-3.3. A lawyer also has the duty to disclose any adverse legal authority, even if it is not disclosed by opposing counsel. See FL ST BAR Rule 4-3.3(a)(3). A lawyer must not allow the court to be misled by false statements of law, fact, or evidence that the lawyer knows to be false. See Comment to FL ST BAR Rule 4-3.3. A lawyer should also not allow his client to offer evidence that is false. If the lawyer knows that the client intends to testify falsely or wants the attorney to introduce evidence that is false, the lawyer should try to persuade the client not to offer the evidence or disclose to the tribunal that false evidence has been offered. See FL ST BAR Rule 4-3.3(a)(4).
VIII. Be Prepared
In order to provide competent representation to a client, a lawyer should always be adequately prepared and maintain the requisite knowledge and skill. See FL ST BAR Rule 4-1.1. In order to be thoroughly prepared for a particular matter, an attorney should inquire into the factual and legal elements of the problem, and use the methods and procedures that meet the standards of competent practitioners. See Comments to FL ST BAR Rule 4-1.1. In addition, to maintain the requisite knowledge and skill, an attorney should keep abreast of changes in the law and comply with continuing legal education requirements. See Comments to FL ST BAR Rule 4-1.1.
IX. Cooperation with Opposing Counsel
A lawyer should always be courteous and agree to the reasonable requests of opposing counsel regarding matters that will not prejudice the client. An attorney should not take actions merely to harass his opponent. For the adversary system to function properly, lawyers must cooperate with one another to insure that the decisional process is prompt and just. A lawyer should be fair to the opposing party and counsel. See FL ST BAR Rule 4-3.4. In order to promote fair competition in the adversary system, lawyers should refrain from destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. See Comments to FL ST BAR Rule 4-3.4.
X. Improper Influence on the Decision Maker
A lawyer should never try to influence a judge, juror, prospective juror, or other decision maker by improper means. See FL ST BAR Rule 4-3.5. Ex-parte discussions with a judge are improper, and a lawyer should not communicate with the judge about a pending matter without giving the other party sufficient notice to be heard. See FL ST BAR Rule 4-3.5(b). Doing so can result in a motion to disqualify the judge. See Pearson v. Pearson, 870 So. 2d 248 (Fla 2d DCA 2004) (granting petition to disqualify judge based on ex-parte communication with respondent). An attorney must also avoid all personal contact and communication with a juror or prospective juror, other than communications before the judge. See FL ST BAR Rule 4-3.5(d). After the jury is discharged, an attorney may not ask questions or make comments to a jury member except to determine whether the verdict may be subject to legal challenge. See FL ST BAR Rule 4-3.5(d)(4).
[1] Peter F. Valori, Esq. is the managing partner of Damian & Valori LLP in Miami, Florida. He graduated from Pennsylvania State University (B.S., 1991) and the University of Miami School of Law (J.D., magna cum laude, 1994) where he was a member of the University of Miami Law Review.
[2] Amanda L. Fernandez, Esq. is an associate of Damian & Valori LLP in Miami, Florida. She graduated from Florida International University (B.A. 2009) and Villanova University School of Law (J.D. 2013) where she was a director and member of the Villanova Law School Moot Court Board.