Monday, September 3, 2018

Sharp Practices in the Legal Profession

Hon. William H. Burgess, III, B.C.S. 
"Pettifogger" 3-D sculpture by Daniel Midholt, based on a design by Stefan Andersson.  Image found at https://www.artstation.com/artwork/zND4d. No claim to copyright.

One of the more vexing aspects of the legal profession is having to deal with attorneys who engage in sharp practice.

“Sharp practice” is a pejorative expression for unscrupulous conduct, undertaken for the purpose of obtaining an unfair advantage over another, that may (or may not) be technically within the applicable law or rules and is considered immoral, unethical or improper. In business dealings, sharp practice often involves activities that come very close to breaking the law.1 In the legal profession, the greater part of sharp practice occurs on a continuum just beyond the proper bounds of zealous advocacy,2 honor,3 and ethics but just short of outright fraud. It is the sort of behavior that no self-respecting lawyer or judge should have to suffer and no properly functioning legal system should tolerate.



Due to the broad and amorphous nature of sharp practice, precise definition is difficult.4 Behavior constituting sharp practice can range from benign incivility to outright obstructive and abusive litigation tactics that do not advance the resolution of the merits of a case, delay the administration of justice, unnecessarily increase the expenses and burdens of litigation or cause attorneys and litigants annoyance, embarrassment or oppression.5 It can include, for example, what is commonly known as taking unfair advantage of slip-ups of opposing counsel or parties,6 forum shopping, witness coaching,7 deception,8 chicanery,9 bad faith,10 gamesmanship,11 incivility, inequitable conduct,12 overreaching,13 obstructing or delaying discovery,14 and other intentional behavior that runs counter to counsel’s moral and professional obligation of fairness and good faith toward opposing parties and their counsel.15 Most lawyers and judges know sharp practice when they see it, and they don’t like it.

Sharp practice sometimes coincides with its near equivalent, apices litigandi, which is a focus on the subtleties of litigation, close technical points, or captious objections in pleading or practice.16 Apices litigandi places an emphasis on cunning or extremely fine points or subtleties of law, carrying rules or points (apices) of law to an extreme point of severity or refinement beyond the true meaning of the law.17 An apices litigandi argument often is devoid of context or recognition of other points of law or fact that would undermine the argument. Apices litigandi is disfavored because it undermines the search for the truth and often is used to gain unfair advantage over an opponent. As one eighteenth century jurist noted:

It is unconscionable in a defendant, to take advantage of the apices litigandi, to turn a plaintiff round, and make him pay costs where his demand is just. . . . How disgraceful then would it be to the administration of justice, to allow chicane to obstruct right, by the help of a legal fiction contrary to the truth of the fact.18

The ultimate answer to sharp practice is not the expansion of positive law, in the sense of professional regulations, for several reasons. Clever lawyering is not the equivalent of sharp practice, and a claim of sharp practice is not a valid defense to lawyer unpreparedness. Also, what is or is not sharp practice (and therefore worthy of condemnation), is not always clear in the specific circumstances and so is a poor subject for detailed professional regulation. Indeed, much of what is considered sharp practice arises in that domain of human action Lord Moulton described as the Domain of Obedience to the Unenforceable (where the obedience is the obedience of a person to that which he or she cannot be forced to obey), lying on a continuum between the Domain of Positive Law (where human actions are prescribed by laws binding on them which must be obeyed) and the Domain of Absolute Freedom (which includes all actions to which humans claim complete freedom).19 Rather, a large part of the answer lies in lawyers having manners that include all things that a lawyer should impose upon himself or herself, from duty to good taste, when dealing with opposing parties and their counsel and with the courts.

Sharpers

The etymological origin of the expression is uncertain. It may be the Dutch word schraapen, to scrape, which is specially used in the sense of getting money by hook or by crook; schraaper is an avaricious, unconscientious person. Sharping is an old English slang expression used to variously connote stealing, swindling, cheating, trickery, and other dishonest dealing; the people engaged in such practices were called sharps or sharpers. From the English sharper is formed to sharp one, meaning to trick or chouse20 a person out of a thing.21

In the sixteenth and seventeenth centuries sharper and related terms were closely associated with gambling and games of chance or skill.22 One of the earliest appearances of the expression sharper in English literature is found in the following couplet from the 1709 Matthew Prior poem “Cupid and Ganymede”:

A sharper, that with box and dice
Draws in young deities to vice.23

In time, the expressions sharper, sharping, and sharp came to be used in association with other types of financial and economic activities, and eventually to politics and the law. By the early 1800s “sharp practice” had become established as an expression for unscrupulous lawyering. The first appearance of this sense of sharp practice in the English press occurred in 1804 as an oblique reference to the courts in a report on the Parliament.24 The first use of that expression by the English press in direct reference to lawyers and the courts was in 1810.25 The expression “sharp practice” became widely popularized in 1837 with the publication of the Charles Dickens novel The Posthumous Papers of the Pickwick Club.26 By then, sharp practice was considered serious misconduct, and falsely accusing a lawyer of “sharp practice” was potentially libelous.27

“Sharp practice” had become an established part of the legal vocabulary of English-speaking countries by the late nineteenth century. In 1886, prominent London solicitor Edward F. Turner described it in the following terms:

It is not easy to give a definition of what constitutes sharp practice, though the words convey a volume of meaning to a solicitor of any experience. It is of necessity almost entirely limited to, and is certainly seen in its worst form in, the conduct of contentious business; and it may, perhaps, in general terms be best described as a habit of doing professionally acts which, although not themselves necessarily unlawful or improper, yet, when taken in connection with existing circumstances, or with expressed or implied representations accompanying them, are deserving of reprobation in a greater or less degree according to the facts of a particular case.28

“Sharp practice” remains a common pejorative for dishonest lawyering used in English case law and, although not explicitly used in the modern bar rules of England and Wales, it is still prohibited.30 Core Duty 3 of the English and Welsh barrister code of conduct is “You must act with honesty and integrity,”31 and Core Duty 5 is “You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.”32 The bar rules also provide:

Your duty to act with honesty and integrity under CD3 includes the following requirements: 1. You must not knowingly or recklessly mislead or attempt to mislead anyone; 2. You must not draft any statement of case, witness statement, affidavit or other document containing: a. any statement of fact or contention which is not supported by your client or your instructions; b. any contention which you do not consider to be properly arguable; c. any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud; d. (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally; 3. You must not encourage a witness to give evidence which is misleading or untruthful; 4. You must not rehearse, practise with or coach a witness in respect of their evidence; 5. Unless you have the permission of the representative for the opposing side or of the court, you must not communicate with any witness (including your client) about the case while the witness is giving evidence; 6. You must not make, or offer to make, payments to any witness which are contingent on their evidence or on the outcome of the case; 7. You must only propose, or accept, fee arrangements which are legal.33

Similarly, the Solicitor’s Regulation Authority (SRA), which regulates solicitors and law firms in England and Wales, has among its 10 mandatory principles the requirements that solicitors and law firms must act with integrity (Principle 2) and behave in a way that maintains the trust the public places in the solicitor or law firm in the provision of legal sevices (Principle 6).34 Note 2.11 to Principle 6 further provides that

Members of the public should be able to place their trust in you. Any behaviour either within or without your professional practice which undermines this trust damages not only you, but the ability of the legal profession as a whole to serve society.35

Canada

Canada has a legal system modeled after the English system. Canadian lawyers and judges approach sharp practice generally in the same manner as the English, with the addition of a duty of fairness toward opposing parties and counsel. In Canada, “[c]ounsel have obligations to deal with each other fairly and not to take advantage of missteps by opposing counsel.”36 These obligations have been enforced by Canadian courts for over a century. An example is the 1889 case of Backhouse v. Bright, in which the case was originally dismissed on the day set for trial because the plaintiff and his agent did not appear. The absence was accidental and three days later the plaintiff sought an order directing the case to be placed back on the trial docket. The defendant made a motion for prohibition. The court dismissed the motion, with costs, and observed:

Surely a case not heard, and dismissed because of the temporary absence of the plaintiff, must, as a matter of course, be restored to the list for trial. It could only be a question of terms. Opposition should be fruitless. While a solicitor’s instructions might not permit him to consent, active opposition is hardly ever made. To build up a client’s case on the slips of an opponent, is not the duty of a professional man.” [Emphasis added.]37

This obligation of courtesy and good faith is also exemplified in bar regulations such as Rule 7.2-2 of the Law Society of Ontario’s Rules of Professional Conduct:

A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.38

Canadian law makes it plain that the rule against one party taking advantage of a clear oversight by the opposite party in a proceeding applies with even greater force to an oversight made by the tribunal before which the parties appear.39 Canadian law also sees the discouragement of sharp practice by lawyers as not being just about professional regulation, but also about preventing the unnecessary employment of valuable and finite court resources.40

America

In the United States, the expression “sharp practice” has had the same meaning of dishonest and unethical dealing as in England and Canada over the same period, including the association of that expression with unscrupulous lawyers. In the 1840s, for example, federal judges were making references to “sharp practice” in their written opinions,41 and in 1857 the expression was used by the United States Supreme Court in its infamous Dred Scott decision.42 By the late 1800s, Americans were well familiar with “sharp practice” and other English expressions for dishonest lawyering, as one Michigan jurist noted:

We think that the term “pettifogging shyster” needed no definition by witnesses before the jury. The combination of epithets every lawyer and citizen knows belongs to none but unscrupulous practitioners who disgrace their profession by doing mean work, and resort to sharp practice to do it.43

The development of the adversary legal system in America closely paralleled that of England and Canada. While judges and juries were evolving into neutral and passive fact finders, the legal profession grew in strength and importance, with an expansion of the attorneys’ responsibility to present evidence and manage litigation. As resolution of disputes by the presenting of evidence in open court by skilled advocates became the norm, sensitivity to procedural, evidentiary, and professional problems was heightened, giving rise to formal codes of evidence, procedure, and legal ethics, as well as organized bar associations and state regulation of the practice of law. Much of this rule-making and regulation was designed to counter the no-holds-barred zealous advocacy of the sort exemplified by Henry Lord Brougham’s defense of Queen Caroline during her trial in the House of Lords in 1820,44 to shield the fact-finder from being misled or prejudiced, and to cull sharp practices from the legal profession.45

The creation of rules of procedure and discovery, in particular, were intended to make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.46 This has also led to a consensus among courts that cases should be decided on the merits and not by a lawyer’s stooping to sneaky or underhanded trial tactics,47 and the emergence of the lawyer’s duty to cooperate with opposing counsel, especially in matters of discovery:

The concept of trial by ambush has long ago fallen into desuetude in both state and federal courts. Modern discovery practices seek to facilitate open and even-handed development of the relevant facts so that justice may be delivered on the merits and not shaped by surprise or like tactical stratagems. Thus, lawyers have a duty to cooperate with and facilitate forthright discovery and not to indulge in gamesmanship with respect to discovery obligations.48

Florida

In Florida, the expression “sharp practice” has long held the same pejorative meaning as in the rest of the country. As a matter of litigation, “sharp practice” first appeared in an opinion issued by the Florida Supreme Court in 1885.49 Sharp practice among lawyers was one of the primary concerns that led to state regulation of the practice of law In Florida: Chapter 10175, Acts of 1925, created Florida’s Board of Law Examiners and prescribed the Board’s powers and duties, including

[T]he authority to prescribe rules of professional conduct and ethics in their practice, and to make investigations as to any immoral or sharp practices or other unprofessional conduct and report the same to the state’s attorney of the circuit court for investigation...50

Sharp practices are prohibited by the Oath of Admission to The Florida Bar, which obligates all Florida attorneys to “employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor,” and to pledge “fairness,51 integrity, and civility” to opposing parties and their counsel in court and in all written and oral communications. Likewise, the Florida Bar Creed of Professionalism requires lawyers to “strictly adhere to the spirit as well as the letter of [the legal] profession’s code of ethics, to the extent that the law permits and ... at all times be guided by a fundamental sense of honor, integrity, and fair play.” These principles are embodied in the following Rules Regulating the Florida Bar: Rule 3-4.3,52 Rule 4-3.3,53 Rule 4-3.4,54 and Rule 4-8.4(d).55 The specific purposes of these pledges and duties is to eliminate the improper “gotcha” tactics that generate disputes that unfairly and needlessly consume public and private resources while delaying the process of justice and making it more expensive,56 as well as to outlaw argumentum ad hominem57 that subverts the administration of justice and undermines the public’s confidence in our system of justice.58

Prosecutors

In the 1935 U.S. Supreme Court opinion in United State v. Berger, considered by some to be the seminal case on the proper role of the prosecutor, Justice Sutherland observed that:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.59

The prosecution of a criminal case involves the following inarguable rules: (1) Criminal defendants are entitled to a fair trial; (2) The public has the right to know about criminal prosecutions, particularly those involving public corruption; (3) Criminal cases should be tried in the courtroom and not in the press; and (4) People who venture close to the edge of a rule risk falling over the edge. The rules that govern public statements by prosecutors regarding accused defendants are designed to balance the first three principles, with a heavy thumb on the side of defendants’ fair trial rights.60

Common prosecutorial sharp practices involve illegitimate threats and bullying, sometimes in cooperation with law enforcement. This can include strong-arming pleas from defendants;61 intimidating or embarrassing witnesses, 62defendants,63 or opposing counsel; forcing defendants to waive constitutional rights to speedy trial or rights of appeal; retaliation; shaming;64 overreaching; and demagoguery.65

Florida has adopted the American Bar Association (ABA) Standards of Criminal Justice Relating to Prosecution Function.66 Under Standard 3-1.4, a prosecutor is prohibited from making or authorizing the making of extrajudicial statements that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.67 Under this Standard, a prosecutor also should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under the ABA Standard.68

ABA Standard 3-1.4 is comparable to R. Regulating Fla. Bar 4-3.6, applicable to all Florida lawyers. Rule 4-3.6 provides that

(a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding. (b) A lawyer shall not counsel or assist another to make such a statement. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule.69

Fortunately, Florida’s Rule 4-3.6 does not contain the public record “safe harbor” exception contained in its counterpart, ABA Model Rule of Professional Conduct 3.6(b)(2), pursuant to which a prosecutor (or other lawyer) is permitted to make extrajudicial statements about information contained in public records. Such a “safe harbor” provision would permit prosecutors in Florida to comment on highly prejudicial statements that are contained in public records or to file court documents containing such information in order to facilitate such comment without fear of discipline.70 Regardless, unethical prosecutors can get around the rule against engaging in conduct prejudicial to the administration of justice by filing court documents that contain information that a prosecutor is otherwise barred from expressing directly and surreptitiously providing it to the media or letting the media know where to find it in the public record without having to comment directly, which is yet another form of sharp practice.

Role of the Judiciary

A trial judge in the United States has the inherent power to do those things necessary to conduct its business in a proper manner, and to protect the court from acts obstructing the administration of justice.71 The options available to trial court judges for dealing with sharp practice in and out of the courtroom are various and range from the preventive to the reactive. Preventive measures can include setting the example by running an orderly courtroom in which everyone is expected to behave properly, providing attorneys and litigants with written guidance on the behavior expected of lawyers during proceedings in and out of the courtroom, and engaging local bar associations and other civic groups in the promotion of professionalism among lawyers. Reactive measures can include directly admonishing attorneys for relatively minor misconduct, referral to local bar discipline boards, formally complaining to the bar, and exercising the court’s inherent authority to discipline lawyers directly.

The power of a court over members of its bar is at least as great as its authority over litigants.72 This includes the power to impose sanctions for misconduct separate and apart from the court’s powers of contempt. This power embraces, for example, the power to assess attorney’s fees for the misconduct of an attorney in the course of litigation even in the absence of an express statute or rule authorizing the award of attorney’s fees;73 refusal to grant specific performance of a contract procured through misrepresentation or concealment that does not rise to the level of actionable fraud;74 dismissing an indictment due to prosecutorial misconduct;75 setting aside a jury verdict obtained through sharp practice;76 and denying retrial.77

In Florida, the court’s power to impose a sanction against an attorney for misconduct is not unlimited, and requires the court to make an express finding of bad faith conduct, together with detailed factual findings describing the specific acts of bad faith. The court also must strike a balance between condemning as unprofessional or unethical litigation tactics taken solely for bad faith purposes, while ensuring that attorneys will not be deterred from pursuing lawful claims, issues, or defenses on behalf of their clients or from their obligations as an advocate to zealously assert the clients’ interests.78 For a court to directly impose sanctions upon an attorney, the attorney’s misconduct must have a material impact on the proceedings,79 the attorney must be given an opportunity to respond to the allegation before any sanction is imposed, and the sanction must have a rational relationship to a legitimate purpose of the court’s authority.80 As sharp practice is predicated on bad faith, the court’s sanctioning power is a fair use against this sort of misconduct.

Practical Steps for an Attorney to Take When Confronted With Sharp Practices81

The primary purpose of our system of courts is to provide a neutral forum for the resolution of legal disputes on their merits in a fair, orderly, economical and efficient manner. Sharp practice runs counter to this purpose and undermines public faith and confidence in the courts and the rule of law. For this reason, attorneys who are confronted with opposing counsel who engage in sharp practice are encouraged to take the following steps if it is a matter that cannot be resolved in polite conversation between professionals:82

1. Remind yourself that you have a duty to report misconduct. Decide whether the act or acts rise to the level of an offense that a self-regulating profession is obligated to prevent. Determine whether this is a one-off incident or whether it is part of a pattern and practice for the offending attorney.

2. Research the attorney you suspect of engaging in sharp practices. You may uncover additional instances where the attorney has used the same tactics against others, placing you in a better position to deal with the attorney. In some cases, you may be able to use your findings as evidence that sharp practices are being used against you or your client.

3. Memorialize opposing counsel’s conduct in a written communication, such as a letter or an email, outlining the rules and statutes that the attorney has violated.

4. At a deposition, describe on the record non-verbal conduct that would mount to sanctionable behavior. In addition to “reading” non-verbal conduct into the record, consider obtaining verification from a witness (such as the witness or another attorney who is present). You may ask the witness on the record if he or she feels intimidated, offended, or embarrassed. If opposing counsel is known for sharp or otherwise improper tactics, consider noticing a videotaped deposition.

5. Identify personal attacks or factual misrepresentations made in opposing counsel’s written submissions to the court.

6. File a motion for sanctions, under the court’s inherent power to regulate lawyer conduct, based on opposing counsel’s objectionable conduct and provide specific, written documentation of that conduct in the motion’s supporting exhibits.

7. File a motion to compel under the applicable rule of procedure,83 or the court’s inherent power to sanction attorney or litigant misconduct, or both, when dealing with obstructionist tactics that prevent access to rightly discoverable information.

8. If it happens in the courtroom or hearing room during proceedings, bring the matter to the attention of the judge or hearing officer by making a clear objection on the record which includes all relevant information and a request for appropriate relief.

This article was adapted from a portion of manuscript on the important topic of courtroom professionalism being prepared for publication by the author. © William H. Burgess, III. All Rights Reserved. Comments about this article or the subject of sharp practices in and out of the courtroom are encouraged.

WHB3 September 3, 2018

NOTES

1See, e.g., U.S. v. Smith, 1 Sawy. 277, 27 F. Cas. 1175 (D. Ore. 1870) (“Indeed, by the expression ‘sharp practice’ men commonly designate acts or conduct which, although contrary to good morals or the golden rule, are not punishable as crimes by the law of the land.”); People v. Lapique, 120 Cal. 25, 52 P. 40 (Cal. 1898) (“Indeed, it may be admitted that defendant was guilty of a piece of sharp practice. Yet sharp practice may not constitute embezzlement.”); Feero v. Housley, 205 Or. 404, 288 P. 1052 (Ore. 1955) (“The artifices employed to consummate the plan display all the characteristics of overreaching, sharp practices, and fraudulent and inequitable conduct, which, although perhaps technically lacking the elements of actionable fraud, nevertheless are sufficient to cause a court of equity to view them with disdain.”).

2“Zealous advocacy” is not justification for sharp practices. “Counsel should never allow their zeal in watching over and protecting the interests of their clients . . . to cause them to lose sight of the fact that they are officers of the court, and that as such officers they owe certain duties to the court. They should strive to render the members of the . . . courts all possible assistance in discharging their arduous duties, and should be careful not to impose unnecessary burdens on them.” Mitchell v. Mason, 65 Fla. 208, 213, 61 So. 579 (Fla. 1913).

3Honor in this sense is the personal and professional quality of knowing and doing what is morally right, demonstrated in a lawyer by properly balancing the opposing obligations to be a zealous advocate for the interests of one’s client, as well as an officer of the court, accompanied by an earned reputation for honesty and fair dealing. It also implies an ability to feel shame and remorse for that which is dishonorable.

4See Black’s L. Dict. 1501 (9th ed. 1990) (“unethical action and trickery, especially by a lawyer”). The New York County Lawyers’ Association has described sharp practice as

[O]verreaching, crafty or under-handed conduct in litigation . . . in short, “dirty tricks.” Examples include but are not limited to: placing false facts in unsworn memoranda, misquoting court opinion, having ex parte communications with the court, writing letters purporting to “confirm” agreements that never took place, coaching a witness during a deposition with “speaking” objections, misstating an adversary’s position, withholding discoverable documents, and other obstructive tactics.
Incivility and Sharp Practice, A Report of the Committee on the Supreme Court of the New York County Lawyers’ Association, July 1993.

5See Dondi Properties Corp. v. Commerce Sav. and Loan Ass’n., 121 F.R.D. 284 (N.D. Tex. 1988) (“With alarming frequency, we find that valuable judicial and attorney time is consumed in resolving unnecessary contention and sharp practices between lawyers. Judges and magistrates of this court are required to devote substantial attention to refereeing abusive litigation tactics that range from benign incivility to outright obstruction. Our system of justice can ill-afford to devote scarce resources to supervising matters that do not advance the resolution of the merits of a case; nor can justice long remain available to deserving litigants if the costs of litigation are fueled unnecessarily to the point of being prohibitive.”).

6See The Florida Bar v. Cocalis, 959 So. 2d 163, 167 (Fla. 2007) (“Under these circumstances, Cocalis’s conduct offends our well-recognized policy that cases should be decided on the merits and not by a lawyer’s stooping to sneaky or underhanded trial tactics.”); Bruner-McMahon v. County of Sedgwick, 2011 WL 5357911 (D. Kan. 2011) (attempting to penalize counsel for counsel’s obvious clerical error in omitting supporting exhibits that were supposed to be attached to a memorandum in support of a motion for summary judgment).

7See In re Eldridge, 37 Sickels 161, 82 N.Y. 161, 37 Am. Rep. 558, 2 Ky. L. Rptr. 75 (Ct. App. N.Y. 1880) (“[H]e corrupts justice at the fountain by dictating the evidence of the witness.”). Witness coaching includes signaling the witness during testimony. See, e.g., Robert S. Khuzmani, Director, Division of Enforcement, Securities and Exchange Commission, “Remarks to Criminal Law Group of the UJA-Federation of New York,” New York City (June 1, 2011).

8See Webb v. Culver, 265 Or. 467, 509 P. 2d 1173 (Or. 1973) (vendor’s misleading representations as to property boundary entitled purchasers to contract reformation).

9See Market Street Associates Ltd. Partnership v. Frey, 941 F. 2d 588, 594 (7th Cir. 1991) (taking advantage of the another’s incapacity, ignorance, inexperience, or even naivete); Gonzalez v. Quinco Electrical, Inc., 171 So. 3d 153 (Fla. 1st DCA 2015) (attempt to thwart opposing party’s right to notice and to respond to a request for relief from the tribunal by inserting the request in a document that appeared on its face to have exclusively another purpose, in the hope that the request would be overlooked until after the time to respond had passed); Johnson v. U.S., 35 F. 2d 355 (W.D. Wash. 1929) (inserting, in orders submitted to the court, rulings that were not made by the court, or rulings that are contrary to rulings the court actually made, without informing the court, in the expectation that the court will sign the order without reading it or without recalling the specifics of the court’s decision, in reliance upon the duty and integrity of counsel); Caso v. Luzerne County, 2013 WL 12109489 (M.D.Pa. 2013) (handing a summons to some unknown individual whose identity is not established, and claiming that service on the defendant was effected, done in a manner to prevent the defendant from receiving adequate notice of the lawsuit or a fair opportunity to present a defense against the lawsuit); U.S. v. Ford, 9 F. 2d 990 (D. Mont. 1925) (inserting in a bill of exceptions that have no existence in fact). [A bill of exceptions is a formal written statement from a trial judge to an appellate court listing a party’s objections or exceptions made during the trial and the grounds on which they were based. See Black’s L. Dict. 164 (1990 ed.).]

10See Brown v. Royalty, 535 F. 2d 1024 (8th Cir. 1976) (new trial ordered where attorney disregarded pretrial rulings and repeatedly suggested inadmissible evidence to jury); Robinson v. Ward, 203 So. 3d 984 (Fla. 2d DCA 2016) (new trial granted and sanctions ordered against attorney who acted in bad faith who repeatedly violated trial court’s directions and exposed jury to inadmissible evidence).

11Gamesmanship is the art or practice of winning a game by clever methods which are not against the rules but are very close to cheating. See, e.g., Gonzalez v. Quinco Electrical, Inc., 171 So. 3d 153 (Fla. 1st DCA 2015) (attempt to thwart opposing party’s right to notice and to respond to a request for relief from the tribunal by making the request on the second page of a notice of appearance, in the belief that the request would be overlooked until after the time to respond had passed).

12Murray v. Laugsand, 179 Or. App. 291, 39 P. 3d 241 (Ct. App. Ore. 2002) (“[T]he range of conduct termed ‘inequitable’ is quite broad, ranging from the most egregious and concrete, such as fraud, to more amorphous and less egregious misconduct, sometimes described as ‘overreaching’ or ‘sharp practice.’”); Webb v. Culver, 265 Or. 467, 509 P. 2d 1173 (Ore. 1973); Mayer v. Rhymster, 226 Or. 122, 359 P. 2d 407 (Ore. 1961).

13Overreaching is conduct that exceeds the established limits of authority or due process, as in the gaining of an unconscionable advantage over another, especially by unfair or deceptive means. Merriam-Webster’s Dictionary of Law (Springfield, Mass.: Merriam-Webster 1996) 347.

14Jelinek v. Costello, 247 F. Supp. 2d 212 (E.D.N.Y. 2003) (sharp practice by prosecutors to withhold witness pretrial statements until the very last moment); U.S. v. Tin Yat Chin, 476 F. 3d 144 (2d Cir. 2007) (springing surprise expert rebuttal witness on unsuspecting defendant who had timely disclosed own expert and made all required expert disclosures prior to trial).

15Examples of sharp practice abound. See, for example, Craig Enoch, Incivility in the Legal System – Maybe It’s the Rules, 47 SMU L. Rev. 199 (1994); John Wesley Hall, Jr., Professional Responsibility in Criminal Defense Practice, Ch. 3, § 3:17 Dirty Tricks (3d ed. 2017); Daniel Markovits, Legal Ethics From the Lawyer’s Point of View, 15 Yale. J.L. & Human 209 (Summer 2003).

16See, e.g., Hinsdale v. Miles, 5 Conn. 331 (Conn. 1824) (in action of assumpsit against endorser of lost promissory note, the loss or destruction of note and lack of proof of date of the loss do not change the contract in it or the liability of the parties thereunder).

17Black’s L. Dict. 95 (1990 ed.).

18Morris v. Pugh [1761] 2 Geo. 3. B.R. 1243-44. The response to apices litigandi is apices juris non sunt jus – extremities, or mere subtleties of law, are not law. See Black’s L. Dict. 95 (1990 ed.).

19Rt. Hon. Lord Moulton, “Law and Manners,” The Atlantic Monthly, Vol. 134 No. 1 (July 1924) 1-4.

20“Chouse” is to cheat or swindle.

21See Hensleigh Wedgwood, A Dictionary of English Etymology, Vol. 3 (London: Trübner & Co., 1865) 159.

22See Narcissus Luttrell, A Brief Historical Relation of State Affairs, Vol. 1 (Oxford University Press 1857) 99 (“sharpers about town”); George Augustus Sala, Twice Round the Clock ; or the Hours of the Day and Night in London (London: Richard Marsh 1862) 336 (“German swindlers and card-sharpers”); Robert Houdin, The Sharper Detected and Exposed (London: Chapman and Hall 1863); Rev. Edward S. Taylor, Ed., The History of Playing Cards, With Anecdotes of Their Use in Conjuring, Fortune-Telling, and Card-Sharping (London: John Camden Hotten 1865); John Nevill Maskelyne, Sharps and Flats: A Complete Revelation of the Secrets of Cheating at Games of Chance and Skill (London: Longmans Green and Co. 1894).

23The Poetical Works of Matthew Prior, Vol. 1, Cooke’s ed. (London: J. Wright 1802) 21.

24Bell’s Weekly Messenger, June 17, 1804, 197 (“Lord Dunlo was very severe on the motion, and the conduct of those who procured the accidental vote in the beginning of the evening. If he had been in another place, he should have denominated it sharp practice.”).

25“Epitome of Politics,” Bury and Norwich Post, Wednesday, February 7, 1810, 6 (“Since the preceding review the Minister has exhibited many tricks of sharp practice, with which he became familiar during his employment in the courts.”).

26Charles Dickens, The Posthumous Papers of the Pickwick Club (London: Chapman & Hall 1837), commonly known as “The Pickwick Papers.” The novel uses the phrase “sharp practice” three times in connection with the unscrupulous practices of attorneys Dodson & Fogg, whose antics are described in great detail.

27See Boydell v. Jones, 4 M. & W. 446; 7 Dowl. 210 (1838) (“[S]harp practice in the profession of an attorney was and is, and was and is considered to be and to import, disreputable practice, and practice discreditable to the attorney adopting or pursuing the same . . .”).

28Edward F. Turner, Solicitor, The Organisation of a Solicitor’s Office, 2d ed., (London: Waterlaw & Sons Ltd., London Wall 1886) 100-103.

29See the 2012 High Court condemnation of celebrity solicitor Nick “Mr. Loophole” Freeman for failing to put “all his cards on the table” during a speeding case. See R (Zafar Ali) v Mid Sussex Magistrates’ Court [July 19, 2012] CO/1646/2012 (Unreported); Victoria Ward, “‘Mr. Loophole’ Condemned for Sharp Practice by Judge,” Telegraph (UK), July 20, 2012; “Top Judge Criticises ‘Mr Loophole,’” Express (UK), July 20, 2012.

30See “The Code of Conduct,” The Bar Standards Board Handbook (May 2018), 19-57, found at https://www.barstandardsboard.org.uk/media/1933294/bsb_handbook_version_3.3.pdf. Under these rules, for example, a barrister must not knowingly or recklessly mislead or attempt to mislead the court, must not abuse his or her role as an advocate, must take reasonable steps to avoid wasting the court’s time, and must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions, to the end that the court is able to rely on the information provided to it and the public has confidence in the administration of justice and those who serve it.

31The Bar Standards Board Handbook (May 2018), 22.

32The Bar Standards Board Handbook (May 2018), 22.

33The Bar Standards Board Handbook (May 2018), 27.

34The Solicitor’s Regulation Handbook, Vers. 19 (October 1, 2017), found at https://www.sra.org.uk/solicitors/handbook/pdfcentre.page.

35The Solicitor’s Regulation Handbook, Vers. 19 (October 1, 2017), found at https://www.sra.org.uk/solicitors/handbook/pdfcentre.page.

36Xpress View Inc. v. Daco Manufacturing Ltd., 2002 CarswellOnt 5898, [2002] O.J. No. 4078, 36 C.C.E.L. (3d) 78.

37Re Backhouse v. Bright, (1889) 13 P.R. 117 (Ont. Div. Ct.).

38See the Law Society of Ontario’s website, at https://www.lsuc.on.ca/relationship-law-society-and-other-lawyers/, for a complete set of the rules.

39Construction Workers Local 53 v. Fahringer Mechanical Contractors Ltd., 2001 CanII 3504 (ON L.R.B.).

40Xpress View Inc. v. Daco Manufacturing Ltd., 2002 CarswellOnt 5898, [2002] O.J. No. 4078, 36 C.C.E.L. (3d) 78.

41See Eldridge v. The Ashley, 2 N.Y. Leg. Obs. 68, 8 F. Cas. 418, No. 4333 (S.D.N.Y. 1842); The Infanta, 1 Abb. Adm. 327, 13 F. Cas. 39, No. 7031 (S.D.N.Y. 1848) (“[T]here are additional reasons why the most liberal intendments and presumptions should be applied in favor of seamen, to uphold their acts, and prevent sharp practice to their disadvantage, in litigations for the recovery of their wages.”).

42Dred Scott v. Sandford, 60 U.S. 393, 531, 19 How. 393, 15 L. Ed. 691 (1857).

43Bailey v. Kalamazoo Pub. Co., 40 Mich. 251, 256 (Mich. 1879) (general reputation is sufficient to justify the charge that a lawyer is a “pettifogging shyster”).

44“[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.” Gerald F. Uelmen, Lord Brougham’s Bromide: Good Lawyers as Bad Citizens, 30 Loy. L. A. L. Rev. 119 (Jan. 1, 1996), quoting 2 Trial of Queen Caroline 8 (London, J. Robins & Co. Albion Press 1820-21).

45See Stephan A. Landsman, “A Brief Survey of the Development of the Adversary System,” Ohio L. J. 713 (1983).

46See Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 91 L. Ed. 451 (1947).

47See, e.g., The Florida Bar v. Cocalis, 959 So. 2d 163, 167 (Fla. 2007).

48In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331 (N.D. Ill. 2005).

49Keil v. West, 21 Fla. 508, 524 (Fla. 1885) (“They have done nothing savoring of sharp practice or wrong upon her.”).

50Ch. 10175, Acts of 1925.

51Fairness to opposing parties and their counsel means treating them in a way that is right and reasonable, in a manner that is even-handed, impartial, honest, and respectful, and without favoritism or discrimination. See Black’s L. Dict. 595 (1990 ed.).

52“The standards of professional conduct required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration of certain categories of misconduct as constituting grounds for discipline are not all-inclusive nor is the failure to specify any particular act of misconduct be construed as tolerance of the act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice may constitute a cause for discipline . . .” R. Regulating Fla. Bar 3-4.3.

53Lawyers, as officers of the court, have a special duty “to avoid conduct that undermines the integrity of the adjudicative process.” R. Regulating Fla. Bar 4-3.3 comment.

54“Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.” R. Regulating Fla. Bar 4-3.4 Comment.

55“A lawyer shall not . . . engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis . . .” R. Regulating Fla. Bar 4-8.4(d).

56See Gonzalez v. Quinco Electrical, Inc., 171 So. 3d 153 (Fla. 1st DCA 2015).

57Argumentum ad hominem (“argument against the person”) is a logical fallacy in which a claim or argument is rejected on the basis of some irrelevant fact about the person presenting the claim or argument. It comprises an attack against the character, circumstances or actions of the person making the claim or argument and the taking of this attack to be evidence against the claim or argument the person is making. It is a fallacy because, in most cases, the character, circumstances, or actions of the person have no bearing on the truth, falsity, or quality of the claim or argument being made.

58“The proscription [of Rule 4-8.4(d)] extends to any characteristic or status that is not relevant to the proof of any legal or factual issue in dispute. Such conduct, when directed towards litigants, jurors, witnesses, court personnel, or other lawyers . . . subverts the administration of justice and undermines the public’s confidence in our system of justice, as well as notions of equality.” R. Regulating Fla. Bar 4-8.4(d) Comment.

59Berger v. U.S., 295 U.S. 78, 84-88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).

60U.S. v. Silver, 103 F. Supp. 370 (S.D.N.Y. 2015).

61See Griffith v. Wyrick, 527 F. 2d 109 (8th Cir. 1975) (prosecutors must not mischarge, overreach or threaten heavier sentences for those who do not plead guilty).

62See U.S. v. Smith, 577 F. Supp. 1232 (S.D. Ohio 1983) (conduct of police officers which resulted in intimidation and harassment of witnesses for defendant resulted in prejudice to presentation of defense, entitling defendant to dismissal of indictment).

63See U.S. v. Silver, 103 F. Supp. 370 (S.D.N.Y. 2015) (media blitz orchestrated by prosecutor in the days following defendant’s arrest); Henslee v. U.S., 246 F. 2d 190 (5th Cir. 1957) (prejudicial trial publicity resulted from prosecutor’s inappropriate placement of prejudicial information about defendant in unrelated civil court file for different case involving defendant just before closing arguments in the criminal case).

64See Nicholas Poser, “Perp Walk Decision Leaves Troubling Questions,” Communications Lawyer (Summer 2001) 3-10; Ernest F. Lindge, III, “Perp Walks and Prosecutorial Ethics,” 7:55 Nevada L.J. 55 (Fall 2006); Howard F. Goldstein, “‘Perp Walks’ Undermine Presumption of Innocence,” New York L.J., January 7, 2010.

65See Bennett L. Gershman, “Threats and Bullying by Prosecutors,” 46 Loyola U. Chicago L. J. 327 (2014).

66R. Regulating Fla. Bar 4-3.8 Comment (“Florida has adopted the American Bar Association Standards of Criminal Justice Relating to Prosecution Function.”).

67ABA Prosecution Standard 3-1.4(a).

68ABA Prosecution Standard 3-1.4(b).

69R. Regulating Fla. Bar 4-3.6.

70Bennett L. Gershman, “The Prosecutor’s Duty of Silence,” 79 Alb. L. Rev. 1183, 1206-1209 (2016); In re Soares, 947 N.Y.S. 2d 233, 2012 N.Y. Slip Op. 04614, 97 A.D. 3d 242 (Sup. Ct. App. Div. N.Y. 2012) (prosecutor made reckless and misleading public statements regarding pending criminal matters); See Henslee v. U.S., 246 F. 2d 190 (5th Cir. 1957) (prosecutor failed to act with scrupulous regard for fairness and damages the cause of justice during trial by placing otherwise irrelevant information prejudicial to defendant in separate court file).

71See Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002). See also State v. Salitros, 499 N.W. 2d 815 (Minn. 1993) (“An attorney representing a client at trial is an advocate but, as an officer of the court, cannot be a zealot or mouthpiece. The attorney’s role is to help insure that the client’s case is decided not on the basis of extraneous matters but on the basis of evidence relevant to the issues raised and the legitimate inferences from that evidence. The role of the trial judge complements the role of counsel. The trial judge is not a passive moderator at a free-for-all. The trial judge is the administrator of justice and has an affirmative obligation to keep counsel within bounds and to insure that the case is decided on the basis of relevant evidence and the proper inferences therefrom, not on the basis of irrelevant or prejudicial matters.”).

72Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S. Ct. 2455 (1980).

73U.S. Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567 (Fla. 1920).

74Busch v. Baker, 79 Fla. 113, 83 So. 704 (Fla. 1920) (“[S]pecific performance will always be refused when the plaintiff has obtained the agreement by sharp and unscrupulous practices, by overreaching, by concealment of important facts, even though not actually fraudulent, by trickery, by taking undue advantage of his position, or by any other means which are unconscientious . . .”); see also Blondel v. Bolander, 80 Neb. 531, 114 N.W. 574 (Neb. 1908) (same).

75U.S. v. Smith, 577 F. Supp. 1232 (S.D. Ohio 1983).

76See Hollenbeck v. Missouri Pac. Ry. Co., 141 Mo. 97, 38 S.W. 723 (Mo. 1897) (improper questioning of a witness at trial).

77Casey v. U.S., 392 F. 2d 810 (D.C. Cir. 1967) (“The prosecutor should certainly not benefit from the prejudice which he himself has created.”).

78Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002); Rush v. Burdge, 141 So. 3d 764 (Fla. 2d DCA 2014).

79See Tenev v. Thurston, 198 So. 3d 798 (Fla. 2d DCA 2016).

80See Parrish v. RL Regi Financial, LLC, 194 So. 3d 571 (Fla. 2d DCA 2016) (trial court had no inherent authority to order attorney to self-report a “violation” to the Florida Bar with confirmation of such to be placed in a public court file).

81Adapted from “Taking the High Road: How to Deal Ethically with Bullies Who Don’t Play by the Rules,” Francine Friedman Griesing, Esq., Moderator, 2012 ABA Section of Litigation Corporate Counsel Seminar, Hollywood, Florida, February 14-17, 2013.

82It is advisable to prepare a memorandum of record after each such conversation, regardless of the result.

83E.g., Fla. R. Civ. P. Rule 1.380(a) or Fla. R. Crim. P. Rule 3.220(n).

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