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Lawyers are concerned about civility and professionalism within the bar, and with what they perceive as a recent erosion of these qualities. Over the last two decades, some groups of lawyers have responded to these concerns by adopting “professionalism codes” for their members. These commitments to professionalism-also variously styled “guidelines,” “standards” or even “creeds”-often go above and beyond the requirements that legal ethics imposes on all lawyers. The groups that adopt such codes are typically state or local bar associations, or organizations devoted to a specific area of practice. The codes vary considerably in their level of specificity. While the code of the American Inns of Court recites that “I will value my integrity above all,” that of the Connecticut Bar Association includes the more concrete and mundane commitment, “I will cooperate with opposing counsel when scheduling changes are requested.” Professionalism and legal ethics are often mentioned in the same breath, as complementary topics. Professionalism picks up where ethics leaves off. Are these codes binding? But the act of subscribing to a professionalism code itself raises several ethical issues. First, are these commitments “binding,” enforceable by professional discipline? Many codes contain a disclaimer specifically stating that they are not enforceable. The introduction to the American Bar Association Section of Litigation’s guidelines provides that they are “purely aspirational and are not to be used as a basis for litigation, liability, discipline, sanctions or penalties of any type.” Even so, to the extent lawyers are subject to binding rules requiring civility and professionalism, codes give content to those terms, and therefore may be binding by extension. Second, do these commitments interfere with other duties a lawyer has? If an attorney publicly adopts a higher ethical standard, an adversary who does not share the same commitments might, in some circumstances, have an advantage. The lawyer who takes the high road may be shirking the duty to be a zealous advocate for the client. The ABA Section of Litigation guidelines seem to recognize this tension, and resolve it in favor of professional behavior: “We will not, even when called upon by a client to do so, abuse or indulge in offensive conduct directed to other counsel, parties, or witnesses.” Binding ethical codes already attempt to strike a balance between duties to clients and duties to the legal profession-and if attorneys subscribe to a professionalism code that alters that balance, it may be at their own peril. Third, if a lawyer advertises his or her membership in an association that is publicly committed to a professionalism code, but the lawyer repeatedly violates that code, is the lawyer subject to discipline for misrepresentation or false advertising? ABA Model Rule 7.1 broadly provides: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” Even if the professionalism code is not binding on its own terms, a lawyer who broadcasts a commitment to that code is making a public representation about his or her conduct. Lawyers are not permitted to make false advertisements even if those advertisements contain some kind of disclaimer. One response to the foregoing concerns is that professionalism codes neither can nor should be subjected to ethical scrutiny. These codes are beyond the reach of professional discipline because they are purely aspirational and voluntary. This much is clear from the nature and purpose of writing and subscribing to a professionalism code. Moreover, it is desirable that lawyers be allowed some space-free of concerns about professional discipline-to experiment with commitments to professionalism. But if professionalism codes are not in any way binding, they also face criticism for that. Some might consider the code a meaningless gesture or a sanctimonious sham. According to this sentiment, if a rule is not enforceable, it is not a rule, and should not masquerade as one. Ethical standards operate in the realm of “shall,” “shall not” and “may.” Rule 1-100(A) of the California Rules of Professional Conduct is telling: “The following rules are intended to regulate professional conduct of members of the State Bar through discipline.” In the end, commitments to professionalism and civility are less like legal ethics and more like “real” ethics-the principles shared by society generally. Such codes are aspirations to which members commit themselves (and which they sometimes fail to meet). They are often based on an intuitive sense of right and wrong, rather than technical rules, such as a prohibition on partnering with a nonlawyer. They are enforceable not by formal sanctions but by reputation and conscience. “Creed” is thus, in some ways, a more fitting term than “code.” If professionalism codes seem useless or strange, it may be because the law has made us professional skeptics, and because legal ethics has warped our sense of what real ethical commitment means. Robert S. Huie is a litigation associate in the San Diego office of Latham & Watkins.

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