Imagine the outrage. How would an attorney react if they received notice of a hearing to occur in two or three days' time? The notice arrives without the precursor or courtesy of even a phone call to see if the attorney is available for the selected date and time. As I have posited this potential, I have gotten near-universal confirmation that this would be ill-received.
One lawyer I proposed it to said this would be "an outrage." Another proclaimed simply, "patently unprofessional." I only found one lawyer willing to take up for such an action, with "well, if it was a real emergency and could not be addressed any other way."
Professionalism. The Florida Bar and the Florida Supreme Court are professionalism advocates. In the course of my tenure in the bar, much has been invested in the pursuit of professionalism. It has been spoken of, written of, and even canonized. We have Rules Regulating The Florida Bar. We have Professionalism Expectations. We have a dedicated Center for Professionalism.
But a significant portion of the membership (32%) "identified lack of professionalism as the biggest problem facing lawyers today." As a result, the Supreme Court adopted professionalism continuing education requirements in 2023.
Yes, it is a problem. It is a focus. And it is oft-discussed.
Does any attorney want to receive the unilateral notice for an appearance in two days? The answer is simple and short—No. Equivocation is unnecessary—No.
But what of the attorney who drops that subpoena on some witness they want for their trial? Does the attorney contact the witness in advance and discuss? Or does the attorney send the sheriff to their home or office on some random Wednesday, Thursday, or Friday with a subpoena that says, "Be in court Monday?"
I am not discussing a "party," someone who has an interest in that dispute. Someone who has lived with that dispute and its evolution. This regards a witness who has no such interest, who is being summoned, under threat of potential contempt, to appear in a courtroom on two days' notice.
And, to magnify the imposition, what if that subpoena says the witness must travel hundreds of miles from their home to appear in that courtroom? Is there an attorney reading this that would not be perturbed and upset to be summoned hundreds of miles to a hearing on two days' notice under potential penalty of contempt?
No.
So, understanding that they would not be pleased with such an imposition, why would an attorney make such a demand of a witness in their case?
An attorney shall be a professional. This means (the numbered paragraphs are all quotes from the Professionalism Expectations):
- embracing a commitment to serve others;
- enhancing the legal system’s reputation
- accepting responsibility for one’s own professional conduct
- Candor and civility must be used in all oral and written communications
- A lawyer should not make scheduling decisions that limit opposing counsel’s opportunity to prepare or respond.
- A lawyer should abstain from rude, disruptive, and disrespectful behavior
- A lawyer should be civil and courteous in all situations
- A lawyer should not impose arbitrary or unreasonable deadlines on others.
- A lawyer should avoid last-minute cancellations of hearings, depositions, meetings, and other proceedings.
Believe me or don't (sarcasm is hard to resist at times), there are a fair number of people who do not hold favorable views of lawyers. Sure, we rank better than "car salespeople and U.S. lawmakers," but is that a worthy aspiration?
How does a short-notice, "come 400 miles in two days for a trial that does not involve you or risk contempt of court" subpoena promote a favorable perception by the witness (who is the public)? Does this drive respect for the legal system or scorn? How is that courteous? How is it not rude and disrespectful? How could that be seen as non-arbitrary, not disruptive?
The result of such actions is likely to be a motion. Either another party or the witness is likely to file an objection. The witness may have no knowledge of the legal system or access to an attorney of their own on two days' notice. What disadvantage does that effect on them? What is the impact of the lawyer's failure to plan and demanding communication?
That motion then gets added to the burden of the assigned judge. The judge likely has a fair workload to deal with. Despite this, the objection or motion must be added to the list. The assigned judge is asked to consider whether to enforce that subpoena served with two days' notice to compel a witness to travel 400 miles to appear in some distant town on the following Monday.
This post is intended to drive introspection and seek comments. Please write to me (david.langham@doah.state.fl.us) with any argument or explanation that supports the described behavior, discourtesy, and disrespect towards the witness, the other parties, and the adjudicator.
And if we revert to the simplicity of the Golden Rule, would you hold the same opinion if you were the target of the subpoena rather than the issuer?
