You think it goes without saying that lawyers should be polite. Lawyers shouldn’t pretend they have their client’s approval when they don’t. Lawyers shouldn’t impose deadlines on their adversaries that are more onerous than necessary.
But in an era when politicians and pundits alike are bemoaning society’s lack of civility, the New York State Bar Association is announcing today that it has adopted new standards that tell lawyers how they should behave in the proverbial sandbox. Don’t worry though: You most likely won’t get sanctioned for throwing a temper tantrum.
The standards, approved this month by the association’s House of Delegates, will be presented to the administrative board of the state court system. If adopted by the administrative board, they will carry more heft but still be aspirational.
“Civility and professionalism increase the effectiveness of the justice system and enhance the public’s trust in the legal profession,” said Chief Judge Janet DiFiore in a statement that the state bar association plans to release today. “These updated guidelines, which reflect the growing complexity of modern-day law practice, serve as benchmarks, confirming the honorability of the legal profession.”
The state bar first adopted civility standards in 1997 but they, of course, didn’t envision the technology that allows a lawyer to text a reply to another lawyer with lightning speed. They didn’t take into account the increasing informality of responding by email in the wee hours of the night. Or the ability to post damaging comments on social media.
“I think that this is a particularly important effort,” said Michael Miller, president of the state bar association. “We live in a time when civility is on the decline and the public discourse has coarsened. Zealous advocacy and civility are not incompatible and we must do everything possible to encourage courtesy and civility in our profession and beyond.”
It took two years to come up with the new standards because some lawyers were concerned about making them too specific and others worried they weren’t far-reaching enough, said Andrew Oringer, chair of the Committee on Attorney Professionalism and co-chair of Dechert’s ERISA and executive compensation group.
“Their value will be to the extent that they get talked about,” Oringer said. “I hope that they enter the discourse again. That they become reinvigorated and people start to talk about them again. Some courts will look to them for guidance when someone is complaining but that’s a really grey area.”
He added, “I’m an ERISA lawyer and to do something for the greater good this is nuts. From my perspective, this is cool. This is amazing.”
The new standards apply to lawyers handling transactions as well as litigators. The previous guidelines were mostly focused on how to behave in court.
Here are the highlights:
- A lawyer should not impose deadlines that are more onerous than necessary or appropriate to achieve legitimate commercial and other client-related outcomes.
- A lawyer should focus on the importance of politeness and decorum, including such elements as the formality of the setting, the sensitivities of those present and the interests of the client.
- A lawyer should be careful not to proceed without proper authorization or otherwise imply that authority from the client has been obtained when such is not the case.