One of the great concerns of many lawyers is the loss of trial skills and trial decorum.

I have been watching the impeachment trial in the U.S. Senate. Is it being well tried?

Samuel C. Stretton.

Obviously, the impeachment trial is far different than a normal judicial trial. Different rules apply. The chief justice is sitting as the judge, but does not have a final say in the Senate chambers, and there is an extremely long opening point. Having said that, there are certain surprises that one would not expect from experienced trial lawyers.

The first surprise was the assertions by various speakers of their personal opinion. People saying, "I believe this is false or I believe this is true or I believe the president should be acquitted or I believe the president should be impeached and removed," are totally prohibited by case law and the Rules of Professional Conduct in any state. In Pennsylvania, under Rules of Professional Conduct 3.4(c) it notes as follows: "A lawyer shall not when appearing before a tribunal, assert the lawyer's personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but the lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matter as stated herein."

This rule has similar language in every state's ethic rules.

Comment 1 to the rule notes as follows: "The procedure of an adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. 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."

The term tribunal is defined under Rule 1.0, subsection M: "Tribunal denotes a court, an arbitrator, and a binding arbitration proceeding or a legislative body, administrative agency or any other body acting in an adjudicative capacity."

Therefore, the U.S. Senate would qualify as a tribunal and personal opinions and hiding or striking evidence is prohibited.

The position of lawyers in terms of preventing additional evidence is worrisome as noted in the above Comment 1. Of course, it is the Senate that votes on that issue. But it puts lawyers in a difficult position to oppose what could be considered relevant evidence. At least lawyers aren't supposed to do that in the competitive forum of a trial or even an impeachment proceeding. That is why Pennsylvania has Rule of Professional Conduct 3.4. Almost every other state has a similar rule.

The second surprise is the use of notes in giving statements. Any experienced trial lawyer knows you should not use notes in opening and closing statements. Perhaps it doesn't make a difference when there is not a jury as opposed to 100 senators, but the standard operating procedure with trials is you don't read your testimony or refer to notes. You look at your jurors and senators in the eye and outline your positions firmly from the heart. Using notes is not something an experienced trial lawyer does. If you can't hold it in your head and try a case without notes, then perhaps trial lawyer is not the area you should be in. That is the second surprise.

At least one speaker broke the "golden rule." For any trial lawyer, the golden rule is that you can never ask the fact finder, i.e., jury or in this case, U.S. Senators, to put yourself in the shoes of someone else. That is prohibited and an unfair argument. Jurors are not told to place themselves—or fact finders—in the position of a litigant. Jurors and U.S. Senators in an impeachment trial are to evaluate the testimony and evidence objectively and not place themselves in the shoes or one or the other. In Commonwealth v. Stafford, 749 A.2d 489 (Pa.Super., 2000), the Superior Court discussed the golden rule. In that case, the prosecutor asked the jury to put themselves in the shoes of a witness who decided to turn the defendant in. The Superior Court discussed the golden rule, but rejected it in that case.

"Appellant argues that this statement violates the golden rule prohibition against asking the jury to put themselves in the place of a witness in order to enflame their passions. Contrary to the appellant's assertion, the prosecutor's words here were not designed to enflame the passions of the jury to place the rights of a victim over the rights of an accused."

One would have to read in some detail the transcript of the impeachment where the senators were asked to put themselves in the shoes of President Donald Trump to see if it meets that standard. But it's a surprising argument that experienced trial lawyers would never make.

Also, what is surprising is some of the comments made before and during the impeachment trial by lawyers about the guilt or innocence of the president. That kind of conduct is prohibited by Rule of Professional Conduct 3.6 of the Rules of Professional Conduct, limiting pretrial publicity. This rule is usually the same in every jurisdiction. That rule notes as follows: "A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make extra judicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Repeated assertions by lawyers on both sides of guilt, innocence or supposedly misconduct or lack of it and their personal opinions prior to trial is wrong and prohibited and not acceptable for experienced trial lawyers.

Finally, though to some extent toned down by the chief justice during the impeachment hearing, the rancor and personal anger and personal attacks by certain participants against their colleagues on the other side is unforgivable and not something an experienced trial lawyer should ever do. Unfortunately, in this modern age, attacking one's opponent seems to be a tool in the trial bag. But it's not and good lawyers know it is only used by those who don't have confidence in their trial skills. In Pennsylvania, there are rules of civility as to how lawyers are to act. Rule of Professional Conduct, Rule 3.5 is a classic example of what is good trial conduct. Rule 3.5(d) states a lawyer shall not engage in conduct intended to disrupt a tribunal. Clearly, bad conduct, accusing one's opponent or having personal arguments with each other or demeaning one side or the other disrupts a tribunal. In fact, under Pennsylvania Rule of Professional Conduct 8.4(d), a lawyer is prohibited from engaging in conduct that is prejudicial to the administration of justice. Clearly, demeaning one's opponent or saying bad things about one's opponent in a courtroom or in an impeachment trial is conduct prejudicial to the administration of justice since it diverts the fact finder from the serious issues at hand.

Of course, it's always easy to be a Monday morning quarterback. Those above are examples of mistakes that perhaps aren't recognized by those who don't try cases regularly, but are glaring to those who do. Finally, the extremely long periods of time to present argument is not something a good lawyer would do. The days of Daniel Webster and Clarence Darrow with two or three days or sometimes two or three weeks closing or opening arguments are long gone. Careful analysis of the facts on both sides of the case should reveal that this is not as complicated as they make out and the argument should have been made in a little more than two or three hours on both sides, perhaps with some extra time if video exhibits were being shown.

One of the great concerns of many lawyers is the loss of trial skills and trial decorum. Although law schools have excellent advocacy programs and trial advocacy courses, it's not the same as actually trying cases. One has to get into battle and try cases regularly. Unfortunately, for many younger lawyers there is just not the opportunity to do that anymore. The lack of regular trial experience can show as it has done in some of the issues presented during the impeachment trial. The bigger issue from a legal standpoint is that these bad habits are not acceptable and all lawyers who try cases must know the fundamental rules of what you can and cannot do. If these experienced lawyers are doing it, then one can only imagine how the younger lawyers are going to learn from future role models.

In today's world, sometimes lawyers are just as vulnerable as their clients.

Should the basic attorney-client relationship be evaluated in terms of rules of ethics and professional discipline in this modern age?

The question is a very interesting one. Many of the Rules of Professional Conduct are based on the concept that the lawyer is in a fiduciary role with the client, the lawyer is sophisticated and the client is not. The lawyer is very learned and the client is not.

When Rules of Ethics were first developed in Alabama in the 1880s and then initially institutionalized by the American Bar Association in a draft in 1905, lawyers were oftentimes, the most educated person in the community. Most of the population in those days did not receive higher education, many didn't even graduate from high school. There was widespread poverty. Other than reading a newspaper, which many people could not afford, there were few ways to keep up on the news.

Of course, in the modern world, the opposite is true. A large majority of the population are college-educated or with advanced degrees. Everyone is up on the news either from still reading newspapers or from their computers or smartphones. Everyone knows what the most recent news developments are, people can follow up on issues easily, and get a sense of the issues. In fact, many doctors and lawyers are faced with clients who have in some manner researched the law or a medical condition and believe they have all the answers.

The point is that the basic philosophy behind the ethics rules is that lawyers are sort of the guardian of their clients, the poor client cannot be taken advantage of by the sophisticated lawyer. In this modern world, there are many very sophisticated clients, including many who are not necessarily well-educated, but who are very well informed and have very great street sense. These individuals will often manipulate a lawyer. They often will take advantage of the attorney-client relationship in terms of not paying fees, etc. But in the world of professional discipline, it's the lawyer who is responsible for any misconduct. Taking advantage of what the law defines as an unequal relationship, i.e., the sophisticated lawyer versus the unsophisticated client. It is assumed the lawyer has taken advantage of the client due to the unequal relationship.

Of course, lawyers should never take advantage of clients and, of course, a lawyer should do everything they can to represent a client in a proper way, maintain the client's secrets and help the client to the best of their ability. That's what lawyers are supposed to do.

But sometimes in the world of professional discipline, it is forgotten that the model is no longer the almighty, all sophisticated, all knowing lawyer versus the unsophisticated, uneducated, "vulnerable" client. That world doesn't exist anymore. Only the myth of the rich and wealthy lawyer, is not the norm. There are rich and wealthy lawyers, but most lawyers are not. Most lawyers are firmly in the middle class or lower middle class and in many of the firms, lawyers are barely making it in this expensive world one has to live in.

Obviously, the independence of the bar must be maintained and that can be done only through high standards of ethics and integrity and professionalism that must be exhibited by all lawyers. But somewhere in the world of professional discipline and in future evaluations of the attorney-client relationship, there has to be a little more recognition that lawyers are just as vulnerable as the clients and this is no longer the world of the "very wealthy all-powerful lawyer knows best" and the "unsophisticated, uneducated" client who is at the mercy of the lawyer. That world is long gone and the Rules of Ethics when changing to adopt to this modern world should reflect that fact, particularly in the field of professional discipline.