Table of Contents
Members of the Santa Clara County Bar Association have practiced law with a level of professionalism that goes well beyond the requirements of the California Rules of Professional Conduct. To make that level of professionalism the standard for practice in Santa Clara County, this Code of Professionalism is adopted to apply to all lawyers who practice in Santa Clara County. As lawyers, we owe duties of professionalism to our clients, opposing parties and their counsel, the courts and other tribunals, and the public as a whole. Those duties include among others: civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, cooperation, and competence.
This Code is structured to provide a general guiding principle in each area addressed followed by specific examples that are not intended to be all encompassing.
Lawyers are encouraged to maintain their competence through continuing education and professional development. Lawyers are further encouraged to comply with both the spirit and letter of this Code. The goals stated herein are equally applicable to all lawyers regardless of area of practice. Individual lawyers and law offices are encouraged to make this Code their personal standard for practice by signing a pledge to adhere to the Code.
This Code should be read in the context of the lawyer’s underlying duty to zealously represent the lawyer’s client. Nothing in this Code should be read to denigrate the lawyer’s duty of zealous representation. However, all lawyers are encouraged to zealously represent their clients within the highest bounds of professionalism. The legal profession must strive for the highest standards of lawyer behavior to elevate and enhance the profession’s service to justice.
RESPONSIBILITIES TO THE PUBLIC
A lawyer should always be mindful that the law is a learned profession and that among its goals are devotion to public service, improvement of the administration of justice, and the contribution of uncompensated time and civic influence on behalf of persons who cannot afford adequate legal assistance.
- A lawyer should contribute time on a pro bono basis to community activities.
- A lawyer should donate legal services to individuals unable to afford those services. The SCCBA encourages all attorneys to provide at least 60 hours a year in direct legal assistance to the indigent.
- A lawyer should become actively involved in organized activities designed to improve the courts, the legal system, and the practice of law.
- A lawyer should encourage new members of the bar to adopt this Code of Professionalism and mentor them in its application.
RESPONSIBILITIES TO THE CLIENT
A lawyer should work to achieve the client’s lawful and meritorious objectives expeditiously and as economically as possible in a civil and professional manner.
- A lawyer should be committed to the client’s cause, but should not permit that loyalty to interfere with giving the client objective and independent advice.
- A lawyer should advise the client against pursuing litigation (or any other course of action) that does not have merit.
- A lawyer should be mindful of the client’s financial abilities and make his or her best effort to advise the client at the onset of the potential cost of pursuing a case or course of action.
- A lawyer should review his or her billings relating to a matter to ensure the bills accurately reflect the time and costs incurred on behalf of the client for the matter.
A lawyer should understand and advise the client that civility and courtesy in scheduling meetings, hearings, and discovery are expected as professional conduct.
- A lawyer should make reasonable efforts to schedule meetings, hearings, and discovery by agreement whenever possible and should consider the scheduling interests of opposing counsel, the parties, third parties, witnesses, and the court. Misunderstandings should be avoided by sending formal notice after agreement is reached.
- A lawyer should not arbitrarily or unreasonably withhold consent to a request for scheduling accommodations.
- A lawyer should not engage in delay tactics in scheduling meetings, hearings, and discovery.
- A lawyer should not schedule hearings, meetings, and discovery in a manner calculated to take advantage of an opponent’s schedule or lack of availability.
- A lawyer should try to verify the availability of key participants and witnesses either before a meeting, hearing, or trial date is set or if that is not feasible, immediately after so that he or she can promptly notify the court, or other tribunal, opposing counsel, or self-represented litigants of any likely problems.
- A lawyer should notify opposing counsel, self-represented litigants, and, if appropriate, the court or other tribunal as early as possible when scheduled meetings, hearings or depositions must be cancelled or rescheduled and provide alternate dates when possible.
CONTINUANCES AND EXTENSIONS OF TIME
Consistent with existing law and court orders, a lawyer should agree to reasonable requests for extensions of time when the legitimate interests of his or her client will not be adversely affected.
- A lawyer should agree to reasonable requests for extensions of time or continuances without requiring motions or other formalities.
- Unless time is of the essence, a lawyer should agree as a matter of courtesy to first requests for reasonable extensions of time, even if the counsel requesting it previously refused to grant an extension.
- A lawyer should, after agreeing to a first extension, consider any additional requests for time by balancing the need for prompt resolution of matters against the consideration that should be extended to an opponent’s professional and personal schedule, the opponent’s willingness to grant reciprocal extensions, the time actually needed for the task, and whether it is likely a court would grant the extension if asked to do so.
- A lawyer should advise clients that the strategy of not agreeing to reasonable requests for an extension of time is inappropriate.
- A lawyer should not seek extensions or continuances for the purpose of harassment or extending litigation.
- A lawyer should not condition an agreement to an extension on unfair and extraneous terms except those a lawyer is entitled to impose, such as preserving rights that an extension might jeopardize or seeking reciprocal scheduling concessions.
- A lawyer should not, by agreeing to extensions, seek to cut off an opponent’s substantive rights, such as his or her right to move against a complaint.
- A lawyer should agree to reasonable requests for extensions of time when new counsel is substituted for prior counsel.
SERVICE OF PAPERS
The timing and manner of service of papers should not be calculated to disadvantage or embarrass the party receiving the papers.
- A lawyer should not serve documents, pleadings, or motions on the opposing party or counsel at a time or place, or in a manner, that would unfairly limit the other party’s opportunity to respond.
- A lawyer should not serve papers so close to a court appearance that it inhibits the ability of opposing counsel or a self-represented litigant to prepare for that appearance or to respond to the papers, if permitted by law.
- A lawyer should not serve papers simply to take advantage of an opponent’s known absence from the office, or at a time, or in a manner designed to inconvenience an adversary.
- A lawyer should agree in writing to electronic service when the legitimate interests of the client will not be adversely affected and where consistent with existing law and court orders.
- A lawyer, absent an agreement for electronic service, should send courtesy copies of papers by email or by facsimile transmission when it is likely that service by other means, even when allowed, will prejudice the opposing party.
- A lawyer should serve papers on the individual lawyer known to be responsible for the matter and should do so at his or her principal place of work.
- A lawyer should never use the mode, timing, or place of serving papers primarily to disadvantage, harass, or embarrass counsel, a party, or a witness.
- A lawyer should not refuse to provide opposing counsel or a self-represented litigant with the lawyer’s email address, and should cooperate in facilitating the most efficient form of communication. Email communication should not be used to disadvantage, harass, or embarrass counsel, a party, or witness.
A lawyer should be punctual in communications with others and in honoring scheduled appearances.
- A lawyer should arrive sufficiently in advance of trials, hearings, meetings, depositions, or other scheduled events so that preliminary matters can be resolved.
- A lawyer should promptly notify all other participants when, for a reason beyond his or her control, the lawyer will be unavoidably late.
- A lawyer should promptly notify the other participants when he or she is aware that a participant will be late for a scheduled event.
WRITINGS SUBMITTED TO THE COURT
Written materials submitted to the court should always be factual, concise, accurately state current law, and fairly represent the parties’ positions without unfairly attacking the opposing party or opposing counsel.
- Facts that are not properly introduced in the case and part of the record in the case should not be used in written briefs or memoranda of points and authorities.
- A lawyer should avoid degrading the intelligence, ethics, morals, integrity, or personal behavior of the opposing party, counsel, or witness unless such matters are at issue in the proceeding.
COMMUNICATIONS WITH ADVERSARIES
A lawyer should at all times be civil, courteous, and accurate in communicating with adversaries, whether in writing or orally.
- A lawyer should not send any written communication assigning to opposing counsel or a self-represented litigant a position that party has not taken or to create a “record” of events that have not occurred.
- A lawyer should not copy the court on any written communication between counsel or between a lawyer and a self-represented litigant unless permitted or invited by the court.
A lawyer should conduct discovery in a manner designed to ensure the timely, efficient, cost-effective, and just resolution of a dispute.
A lawyer should conduct discovery solely for the purpose of gathering relevant information pertaining to the representation; a lawyer should not conduct discovery to harass, embarrass, or burden a party or witness or cause a party or witness to incur unnecessary costs or fees.
A lawyer should promptly and completely comply with all discovery requirements of the Civil Discovery Act.
A lawyer should advise a client of the need to preserve relevant documents, including electronically stored information (ESI) and related information, when the possibility of litigation is reasonably anticipated, and strive to ensure that such steps are taken by the client.
A lawyer should engage in a meaningful and good faith effort to resolve discovery disputes and should only bring discovery issues to the court for resolution after these efforts have been unsuccessful.
A lawyer, in a criminal case, should comply with all relevant case law and statutes, including Penal Code Sections 1054 - 1054.10.
As to Depositions:
- A lawyer should take depositions only where actually needed to learn facts or information or to preserve testimony.
- A lawyer, in scheduling depositions, should within reason accommodate schedules of opposing counsel, self-represented litigants, and the deponent, where it is possible to do so without prejudicing the client’s rights.
- A lawyer should ordinarily not schedule another deposition for an earlier date without the agreement of opposing counsel when a deposition is scheduled and noticed by another party for the reasonably near future.
- A lawyer should not delay a deposition for bad faith purposes but only if necessary to meet real scheduling problems.
- A lawyer should not ask questions about a deponent’s personal affairs or question a deponent’s integrity where such questions are irrelevant to the litigation.
- A lawyer should avoid repetitive or argumentative questions or those asked solely for purposes of harassment.
- A lawyer representing a deponent or representing another party should limit objections to those that are well-founded and necessary for the protection of the client’s interests and should avoid argumentative and “speaking” objections. A lawyer should remember that most objections are preserved and need be made only when the form of a question is defective or privileged information is sought.
- A lawyer, once a question is asked, should not through objections or otherwise coach the deponent or suggest answers.
- A lawyer should not direct a deponent to refuse to answer a question unless the question seeks privileged information or is manifestly irrelevant or calculated to harass.
- A lawyer for any of the parties should refrain from self-serving speeches during depositions.
- A lawyer should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer.
As to Document Demands:
- A lawyer should limit demands for production of documents, including electronically stored information (ESI), to those the lawyer actually and reasonably believes to be needed for the prosecution or defense of an action.
- A lawyer should not interpret the demand for documents in an artificially restrictive manner in an attempt to avoid disclosure.
- A lawyer responding to document demands should withhold documents on the grounds of privilege only where there is a valid legal basis to do so.
- A lawyer should not produce documents in a disorganized or unintelligible fashion or in a way calculated to hide or obscure the existence of particular documents.
- A lawyer should not delay producing documents to prevent opposing counsel or a self-represented litigant from inspecting documents prior to scheduled depositions or for any other tactical reason.
- A lawyer should not produce ESI in a format the lawyer knows the opposing party, opposing counsel or self-represented litigant cannot review or access if alternative, more easily accessible formats for production are equally available.
As to Interrogatories:
- A lawyer should limit interrogatories in number and scope and use them only as necessary to further the client’s cause.
- A lawyer should not read or respond to interrogatories in an artificial manner designed to assure that answers are not truly responsive.
- A lawyer should not object to interrogatories except when a good faith belief exists in the merit of the objection. Objections should not be made for the purpose of withholding relevant information. If an interrogatory is objectionable only in part, a lawyer should answer the unobjectionable portion.
Motions should be filed or opposed only in good faith and when the issue cannot be otherwise resolved.
- A lawyer should engage in a good faith effort to resolve the issue before filing a motion. In particular, civil discovery motions should be filed sparingly.
- A lawyer should not engage in conduct that forces opposing counsel or a self-represented litigant to file a motion and then not oppose the motion.
- A lawyer should speak personally with opposing counsel or a self-represented litigant and engage in a good faith effort to resolve or informally limit an issue in complying with any meet and confer requirement imposed by law.
- A lawyer should make an ex parte application (including an application to shorten an otherwise applicable time period) when rules permit an ex parte application in an emergency situation, only where there is a bona fide emergency such that a lawyer’s client will be seriously prejudiced if the application were made with regular notice.
DEALING WITH NONPARTY WITNESSES
It is important to promote high regard for the profession and the legal system among those who are neither lawyers nor litigants. A lawyer’s conduct in dealings with nonparty witnesses should exhibit the highest standards of civility and be designed to leave the witness with an appropriately good impression of the legal system.
- A lawyer should be courteous and respectful in communications with nonparty witnesses.
- A lawyer, upon request, should extend professional courtesies and grant reasonable accommodations, unless to do so would materially prejudice the client’s lawful objectives.
- A lawyer should take special care to protect a witness from undue harassment or embarrassment and to state questions in a form that is appropriate to the witness’s age and development.
- A lawyer should not issue a subpoena to a nonparty witness for inappropriate tactical or strategic purposes, such as to intimidate or harass the nonparty.
- A lawyer should notify all counsel as soon as a lawyer knows that a previously scheduled deposition will not take place as scheduled.
- A lawyer who obtains a document pursuant to a deposition subpoena should, upon request, make copies of the document available to all other counsel or self-represented litigant at their expense even if the deposition is canceled or adjourned.
EX PARTE COMMUNICATIONS WITH THE COURT
A lawyer should not communicate ex parte with a judicial officer or his or her staff on a case pending before the court absent agreement of opposing counsel, or a self-represented litigant, or as authorized by law.
A lawyer should not send any written communication directly to the court without copying opposing counsel or a self-represented litigant, except where an ex parte communication is expressly permitted by law.
SETTLEMENT AND ALTERNATIVE DISPUTE RESOLUTION
A lawyer should raise and explore the issue of settlement and alternative dispute resolution in every case as soon as the case can be evaluated.
A lawyer should extend the same courtesy and respect to the self-represented litigant as the lawyer would extend to a lawyer representing an opposing party in settlement discussions.
- A lawyer should always attempt to de-escalate any controversy and bring the parties together.
- A lawyer should not falsely hold out the possibility of settlement as a means for terminating discovery or delaying trial. In every case, a lawyer should consider whether the client’s interest could be adequately served and the controversy more expeditiously and economically disposed of by arbitration, mediation, or other form of alternative dispute resolution.
- A lawyer should advise the client at the outset of the availability of alternative dispute resolution and should advise the client as to the means and timing of engaging in alternative dispute resolution.
- A lawyer involved in an alternative dispute resolution process should participate in good faith, and should not use the process for purposes of delay or for other improper purposes.
TRIALS AND HEARINGS
A lawyer’s conduct in trial and hearings should promote a positive image of the profession, assist the court in properly reviewing the case, and display appropriate respect for the judicial system.
- A lawyer should be punctual and prepared for all court appearances.
- A lawyer should always deal with parties, counsel, witnesses, jurors or prospective jurors, court personnel, and the judge with courtesy and civility.
- A lawyer should understand that, with respect to a self-represented litigant, the court has discretion to take reasonable steps, appropriate under the circumstances and consistent with the law, to enable the self-represented litigant to be heard.
- A lawyer in making objections during a trial or hearing should do so for legitimate and good faith reasons and should not object for the sole purpose of harassment or delay.
- A lawyer should honor requests by opposing counsel or self-represented litigants during trial that do not prejudice the lawyer’s client’s rights or sacrifice tactical advantage.
- A lawyer making a court appearance should address all arguments, objections, and requests to the court, rather than directly to opposing counsel or a self-represented litigant.
- A lawyer making a court appearance, to foster full and fair access of all persons to the court, should demonstrate sensitivity to any party, witness, or other lawyer who has requested or may need accommodation, such as a person with physical or mental impairment.
A lawyer should not seek an opposing party’s default to obtain a judgment or substantive order without giving that opposing party sufficient advance written warning to allow the opposing party to cure the default.
SOCIAL RELATIONSHIPS WITH JUDICIAL OFFICERS OR COURT APPOINTED EXPERTS
A lawyer should avoid even the appearance of impropriety or bias in relationships with judicial officers, court staff, arbitrators, mediators, and independent, court-appointed experts.
- A lawyer should notify opposing counsel or a self-represented litigant of any relationship with a judicial officer beyond a professional relationship, such as when a lawyer is assigned to appear before a judicial officer with whom the lawyer has a social relationship or friendship beyond normal professional association.
- A lawyer should disclose to opposing counsel or a self-represented litigant any social relationship or friendship between the lawyer and arbitrator, mediator, or any independent, court-appointed expert taking a role in the case, so that opposing counsel or a self-represented litigant has the opportunity to object to such arbitrator, mediator, or expert receiving the assignment.
- A lawyer should be mindful that social media interactions with judicial officers may affect the appearance of impropriety or bias. A lawyer should not interact with a judicial officer via online social media when a lawyer has matters pending before that judicial officer.
All matters should be handled with due respect for the privacy rights of parties and non-parties.
- A lawyer should not inquire into, attempt to use, or threaten to use, facts about the private lives of any party or other individuals for the purpose of gaining an unfair advantage in a case. This rule does not preclude inquiry into sensitive matters that are relevant to an issue in the case, as long as the inquiry is pursued as narrowly as is reasonably possible and with due respect for the fact that an invasion into private matters is a necessary evil.
- A lawyer should cooperate in arranging for protective measures designed to assure that any private information revealed is disclosed only to those persons who need it in order to present the relevant evidence to the court if it is necessary for a lawyer to inquire into such matters.
- A lawyer should not attempt to “link to,” “connect” with, “friend,” “follow,” or otherwise interact with an opposing party, opposing counsel, nonparty witness, potential juror, or juror via online social media for purposes of obtaining non-public information, forming an improper relationship, or gaining an unfair advantage in the case.
COMMUNICATION ABOUT THE LEGAL SYSTEM AND WITH PARTICIPANTS
A lawyer should interact with clients, opposing counsel, parties, and the public in a manner consistent with the high respect and esteem which lawyers should have for the courts, the civil and criminal justice systems, the legal profession, and other lawyers.
- A lawyer’s public communications, including those made via online social media, should at all times and under all circumstances reflect appropriate civility, professional integrity, personal dignity, and respect for the legal system. This rule does not prohibit good faith, factually based expressions of dissent or criticism by a lawyer in public or private discussions to motivate improvements in our legal system or profession.
- A lawyer should not make statements that are false, misleading, or that exaggerate. For example, the amount of damages sought in a lawsuit, actual or potential recoveries in settlement, or the lawyer’s qualifications, experience, or fees.
- A lawyer should not create a false or misleading record of events or attribute to an opposing counsel or a self-represented litigant a position not taken.
- A lawyer should not fail or refuse without justification to respond promptly by returning phone calls or otherwise responding to the calls and letters of clients, opposing counsel, or self-represented litigants.
- A lawyer who is serving as a prosecutor or defense counsel should conduct himself or herself publicly and within the context of a particular case in a manner that shows respect for the important functions that each plays within the criminal justice system, keeping in mind that the defense of an accused is important and valuable to society, as is the prosecution.
- A lawyer should refrain from engaging in conduct, including the use of online social media, that exhibits or is intended to appeal to or engender bias against a person on account of that person’s race, color, religion, sex, national origin, sexual orientation, or disability, whether that bias is directed to other counsel, court personnel, witnesses, parties, jurors, judges, judicial officers, or any other participants.
NEGOTIATION OF BUSINESS TRANSACTIONS
A lawyer should ensure that all business transactions and agreements are negotiated, documented, and consummated in an atmosphere of cooperation and with informed authority of the client. Lawyers engaged in a transactional practice have unique responsibilities, as much of the practice is conducted without judicial supervision.
- Each lawyer, in non-confrontational transactional settings, with client approval, should consider giving the other permission to contact the employees of the other party for the purpose of promptly and efficiently obtaining the information and documents necessary to complete the transaction. When granted such permission, a lawyer should not use the contact to communicate on any issue in controversy or to gain any advantage “against” that party or their lawyer.
- A lawyer should not encourage a party with superior knowledge or negotiating position to take unfair advantage of the other party, whether represented or self-represented.
- A lawyer should avoid negotiating tactics that are abusive, that are not made in good faith, that threaten inappropriate legal action, or that do not accurately reflect the client’s wishes.
- A lawyer should not participate in an action or in the preparation of a document that is intended to circumvent or violate applicable laws or rules.
A lawyer should clearly identify for other counsel, parties, or self-represented litigants, all changes that a lawyer makes in documents.
ADDITIONAL PROVISION FOR FAMILY LAW PRACTITIONERS
In addition to other applicable sections of this Code, in family law proceedings, a lawyer should seek to reduce emotional tension and trauma and encourage the parties and lawyers to interact (including via social media) in a cooperative atmosphere, keeping the best interests of the children in mind.
- A lawyer representing a parent should consider the welfare of a minor child and seek to minimize the adverse impact of the family law proceeding on the child.
- A lawyer should not participate in a child custody or visitation dispute motivated by financial or tactical objectives of the client.
- A lawyer for one of the parents should not meet with, confer with, or discuss -- either in person, electronically, or by telephone -- the litigation with the minor child or children of the parent-client.
- A lawyer for one of the parents should not encourage or permit a client to commence or obtain a psychiatric or psychological evaluation of the child or children, which evaluation is intended to be used in the course of the litigation, without prior stipulation of the parties or other court order.
ADDITIONAL PROVISION FOR CRIMINAL LAW PRACTITIONERS
In addition to other applicable sections of this Code, criminal law practitioners have unique responsibilities. Prosecutors are charged with seeking justice, while defense lawyers must zealously represent their clients even in the face of seemingly overwhelming evidence of guilt. In practicing criminal law, a lawyer should appreciate and respect these roles.
- A prosecutor should not question the propriety of a defense lawyer defending a person accused of a crime.
- An appellate defense lawyer and a trial defense lawyer should communicate openly, civilly and without rancor, endeavoring to keep the proceedings on a professional level.
SUPERIOR COURT OF SANTA CLARA COUNTY, ADOPTION OF CODE
Good cause therefore appearing, upon consideration by and with the approval of the Judges of the Santa Clara Superior Court, it is hereby ORDERED that the Code of Professionalism adopted by the Santa Clara County Bar Association in June 1992 will serve as a guide to the Judges of the Santa Clara Superior Court in the exercise of their individual discretion when adjudicating disputes among attorneys. While the Code does not have the force of law or regulation with respect to the conduct of attorneys, it reflects the view of the members of the Santa Clara County Bar Association regarding appropriate attorney behavior. As such it is helpful in giving Judges guidance about the expectations of attorneys concerning acceptable behavior. Cf., Kloepfer v. Commission on Judicial Performance (1989), 49 Cal.3d 826, 838 fn. 6.
It is further ORDERED that notice of this standing order shall be published to all attorneys practicing before this Court by appending a copy of this order to the Local Rules of Court.
Dated: September 30, 1992
/s/ Leonard Edwards