Front Matter Source: Litigation, Vol. 1, No. 1 (Winter 1975) Published by: American Bar Association Stable URL: http://www.jstor.org/stable/29758171 . Accessed: 10/06/2014 21:53 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation. http://www.jstor.org This content downloaded from 91.229.229.89 on Tue, 10 Jun 2014 21:53:10 PM All use subject to JSTOR Terms and Conditions
Transcript
Front MatterSource: Litigation, Vol. 1, No. 1 (Winter 1975)Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758171 .
Accessed: 10/06/2014 21:53
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp
.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].
.
American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.
http://www.jstor.org
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Opening Statement 1 William Emerson Wright All About Litigation 2 The Editor
Trial Balloon 3 Joseph A. Ball
From the Bench 5 Irving R. Kaufman
MORALITY AND MANNERS AT THE BAR
The Necessity for Civility 8 Warren E. Burger Judicial Intimidation 11 Leon Jaworski
Civility in the Courtroom 14 Paul R. Connolly
Managing Unruly Trials 18 Robert C. O'Hara
Disqualification of the Trial Judge 22 Ernest J. Getto
Perjury: The Lawyer's Trilemma 26 Monroe H. Freedman
LAWYERS AND ACCOUNTANTS ON TRIAL
Problems of Professional Responsibility 32 Ray Garrett, Jr.
Accountants: A Flexible Standard 35 A. A. Sommer, Jr.
Accountants' Civil Liability 40 CarlD. Liggio A Standard for Professional Liability 44 John G. Wigmore
Professional Liability Insurance Claims 47 Richard H. Murray
Litigator's Bookshelf 53 Michael E. Tigar Trial Notebook 55 James W.McElhaney
Legal Lore 57
Advance Sheet 59 Steven M. Urn in
The cover of this premiere issue of Litigation contains a reproduction of an original woodcut print, titled "Overruled," by Pat Golden. Ms. Golden, who works out of a studio in her home at 4800 Grantham Avenue, Chevy Chase, Maryland 20015, specializes in woodcuts. Besides "Overruled," her portfolio contains several other prints on the theme of litigation.
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Morality and Manners at the Bar The trauma of Watergate has triggered a plethora of ethical soul-searching by the legal profession. The several articles that constitute this theme?"Morality and Manners at the Bar"?pose ethical questions, but
they are questions that litigators were required to confront long before technology provided us with the means for recording voices surreptitiously on magnetic tape. Indeed, the tone for the ethical dialogue which these articles encompass was set by Chief Justice Burger in a speech in 1971?a time when Watergate was nothing
more than the name of an apartment-office building complex in Washington. That speech by Chief Justice
Burger is reprinted here as a backdrop for the articles which follow it.
The articles selected for this theme consider from various perspectives some problems that arise from the
attorney-judge relationship in the courtroom and the
obligations imposed on the actors in the courtroom drama when we seek to adjudicate legal rights through the adversary system. Leon Jaworski and Paul Connolly,
in their articles, join the dialogue begun by Chief Justice
Burger. Mr. Jaworski warns of the threat to an advocate's independence posed by overbearing and
intimidating judges. Mr. Connolly reminds us of the fine line that exists between good manners and questionable judicial conduct at trial.
Judge Robert C. O'Hara's article is a lengthy analysis of a recent and important report on disruptive courtroom behavior. Ernest J. Getto examines the remedy of
peremptory disqualification of trial judges. Finally, Dean Monroe H. Freedman considers the trilemma faced by an attorney whose client intends to take the stand and give perjured testimony.
These articles do not purport to exhaust the complex problems inherent in attorney-judge relationships in the courtroom. But this first issue of Litigation is an
appropriate forum for initiating a dialogue on that
subject, and we hope the dialogue will continue in future issues of this journal.
RonaldL. Ginns, Associate Editor
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The first major activity of the Section of Litigation was a National Institute held in Montreal, Canada, on May 30 and 31, 1974. The title of this theme-"Lawyers and Accountants on Trial: Professional Liability"-has been borrowed from the literature announcing that Institute.
The Institute, through a series of panel discussions and workshops featuring a mock trial, explored the many ramifications of securities fraud suits filed recently with accountants and lawyers as defendants. In
particular, the Institute explored the legal bases for
asserting liability against lawyers and accountants in such litigation, the implication of such litigation for
professional liability insurance coverage, and the many unique procedural problems encountered in the trial of such cases. The attendance at the Institute and the reaction of those in attendance show dramatically that the subject matter selected for the Section's first major activity was both timely and of broad concern within the
legal profession. Although a full transcript of the Montreal Institute is
being prepared and will be made available, the editors of this journal believe that further dissemination of the views expressed at the Institute is warranted. For that reason, we have collected under this theme five
representative presentations that were made in Montreal. All five presentations have been adapted from the official transcript to make them more appropriate for
the written-rather than spoken-word.
Chairman Ray Garrett, Jr., of the Securities and
Exchange Commission has adapted his informal luncheon remarks for the article entitled "Problems of Professional Responsibility." In that article, Mr. Garrett discusses the difficulties created for the SEC in
attempting to define the scope of the responsibility to be
imposed upon lawyers and accountants in securities fraud matters.
SEC Commissioner A. A. Sommer, Jr. and Carl D.
Liggio, in their articles, focus on the problems of accountants' liability. Mr. Sommer describes the SEC's effort to adopt a flexible approach to that issue, while
Mr. Liggio raises some provocative questions concerning the consequences of the new threat of liability being asserted against the accounting profession.
John G. Wigmore's article focuses on the efforts of the courts to reconcile common law fraud concepts with the
goals of the federal securities legislation. Finally, Richard H. Murray's article analyzes the impact of the new wave of securities fraud suits on professional liability insurance policies.
The editors believe that the subject matter of this theme warrants continuing examination and we hope to
publish additional materials related to this theme in future issues.
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