Every attorney understands the value of ethics in the practice of law, even if only for the extent that education in ethics is required to maintain a bar license. However, not all attorneys appreciate the importance of professionalism, in addition to ethics. Chief Justice Harold Clarke of the Georgia Supreme Court once described it this way: “Ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers.”
Attorneys can all do their part to restore the esteem of the profession. We are especially reminded of this in reflecting on the recent loss of Lane Young, whose contributions to the field of ethics and legal malpractice defense in Georgia were substantial. Lane was a formidable lawyer, but highly respected by his peers and clients. He was also well-regarded by his legal opponents, who valued his integrity and insight. Lane was a primary example of the idea that lawyers do not have to be nasty or needlessly aggressive to win cases: They can be professional and successful.
Bars and courts have recognized that there is a nationwide dearth of civility among practicing attorneys. The importance of professionalism, therefore, has been an important initiative among ethics boards and thought leaders in the area, with numerous articles and continuing legal education seminars dedicated to the topic.
It is accepted that attorneys should strive to always conduct themselves professionally, and bars are assisting with that mission. In Georgia, for example, the Supreme Court adopted The Lawyer’s Creed and Aspirational Statement on Professionalism in 1990. This creed was intended to provide guidance to attorneys regarding the “special obligations” of the profession. Georgia also created the Chief Justice’s Commission on Professionalism, the first body of this kind nationwide. Other states have followed suit in treating this issue seriously.
California, for one, is a leader in this arena. In 2007, California adopted guidelines for attorney civility entitled, “California Attorney Guidelines of Civility And Professionalism.” The guidelines provide that “[a]s officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”
California and Georgia are not alone in treating these issues seriously. Other state bars have gone even further. The Florida Bar enacted a Code for Resolving Professionalism Complaints, providing a process to address professionalism issues in the state. Florida, South Carolina, Louisiana and Arkansas have adopted the following language in their oath for new lawyers: “To opposing parties and their counsel, I pledge fairness integrity, and civility, not only in court, but also in all written and oral communications.”
Even though it is commonly accepted that professionalism and civility is a cornerstone of the profession, it can still create a tension for attorneys who are simultaneously tasked with zealously representing clients and advocating for their positions. Here are some tips:
Treat It as a Profession
It can be possible to lose sight of the fact that the practice of law remains a profession involving real people with real problems. Thus, attorneys can strive to be mindful of the fact that their conduct involves people’s lives or economic interests.
There are potential risks for attorneys who handle representations by threats or intimidation rather than an understanding of the law or legal strategy. If clients believe that their attorney’s conduct solely dictates the outcome of a claim, and not the facts or circumstances, then every case where the result does not meet the client’s expectations could become a potential legal malpractice claim. After all, if only the attorney’s conduct dictates the result, then the client could conclude that it must be the attorney’s fault, if the result is not what the client wanted.
The truth is that the acts of individual attorneys can impact the reputation of the profession as a whole.
Disagree Without Being Disagreeable
It typically does not help a client’s cause to incorporate personal animus against opposing counsel. Contrary to the belief of some, being adversaries does not mean that attorneys must also be enemies. Indeed, as New York tells its attorneys through its State Standards of Civility, “lawyers can disagree without being disagreeable.”
Setting the tone with counsel can also be helpful to the representation as a whole. If clients feed off an aggressive attorney’s energy to treat opposing counsel as the “enemy,” it may make it more difficult or even impossible to resolve the claim on its merits. Further, obstinate behavior can leave opposing parties even more entrenched in their positions and even potentially increase the costs of the representation for everyone.
The Bounds of Zealous Advocacy
Personal attacks do little to convince a court or an opposing party of the merits of a client’s position. The California guidelines on this point provide that “an attorney should not disparage the intelligence, integrity, ethics, morals or behavior of the court or other counsel, parties or participants when those characteristics are not at issue.”
One way to help maintain civility is for opposing counsel to work together to minimize obligations on holidays or vacations. Although there often are where such concessions are impractical or impossible, given the demands of the case, attorneys who automatically refuse every accommodation requested of them solely to hurt the other side may have to justify their conduct.
Typically, judges extend deadlines, grant relief or otherwise take action to refocus the process on the merits of the claim. Yet, conduct that is aimed solely at inconveniencing the other side (rather than protecting a client’s own interests) can cause damage to the credibility of the attorney.
By taking lessons from other attorneys in treating fellow members of the bar as colleagues, attorneys can help restore professionalism to the practice of law.
Shari L. Klevens is a partner at Dentons US in Atlanta and Washington and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.
Alanna Clair is a partner at Dentons US in Washington and focuses on professional liability and insurance defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2019 edition of “Georgia Legal Malpractice Law.”