The late Chief Justice Harold Clarke of the Georgia Supreme Court explained the distinction between ethics and professionalism: “Ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers.” In recent years, the practice of law has fallen down the list of respected and trusted professions. Some of this decline is due to public perception via television shows or movies showing a “slick” attorney, but some of it is self-inflicted.
The reputation of attorneys is important not only to restore the esteem of the profession but also because attorneys can be unpopular parties to litigation. This perception of attorneys can negatively impact a jury’s preconceived notions when hearing a legal malpractice case.
Courts, bar associations, and bar leaders have recognized the problem and are taking increasingly aggressive steps to address it. As a result, professionalism, including a lack of civility, among lawyers has become a recurring theme of bar conventions and lectures.
In 1990, the Georgia Supreme Court adopted The Lawyer’s Creed and Aspirational Statement on Professionalism, which were 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.
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.”
In the last few years, California has also supplemented the attorney oath for new lawyers to include the following statement: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.” This was the first major modification since the oath was codified over a century ago in 1872.
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 pledge: “To opposing parties and their counsel, I pledge fairness integrity, and civility, not only in court, but also in all written and oral communications.”
This, of course, raises a potential tension. Although attorneys are called to act civilly and professionally, attorneys are also tasked with zealously representing clients and fighting on their behalf. When does behavior cross the line? Here are some tips for staying on the right side of professional.
Disagree Without Being Disagreeable
The New York State Standards of Civility observe that “lawyers can 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.
Setting the tone can also be helpful to the representation as a whole. Clients may seize on the idea that opposing counsel is “evil” without regard to the merits of their claim. When that happens, it makes resolution of the claim much more difficult, and in some cases impossible.
Tricks, harassment, subterfuge and “doing or saying whatever it takes” may make it difficult for cases to progress or for representations to focus on the actual issues. If anything, such behavior can leave opposing parties even more entrenched in their positions and even potentially increase the costs of the representation for everyone. Unprofessional behavior by one attorney rarely justifies unprofessional behavior in response.
It Is a Profession
The practice of law remains a profession involving real people with real problems. Every representation involves a unique personal component depending on which attorneys are working on the matter and which clients are being served.
Attorneys can consider whether their conduct is based in legal strategy or whether it is purely personality-driven. 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. It is why professionalism has become more than just a continuing legal education requirement.
The Bounds of Zealous Advocacy
All clients expect their attorneys to zealously advocate their position, whether in litigation or negotiation. Yet, there is a clear distinction between aggressive professional legal services and the lawyering of personal destruction.
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.”
For example, there may be times when opposing counsel can work together to minimize obligations on holidays or vacations. There may also be times where such concessions are impractical or impossible given the demands of the case. However, attorneys that automatically refuse every professional courtesy requested of them solely for the purpose of harming the other side may find themselves before the judge and having 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 at hurting the other side (rather than protecting a client’s own interests) can cause damage to the credibility and effectiveness of the obstructing attorney that may never be measured. In an attempt to ‘zealously represent’ a client, such attorneys instead impair their credibility as advocates.
By balancing interests in advocating for a client with the obligations to treat other members of the bar as colleagues, attorneys can go a long way to restoring professionalism.