As a profession, the practice of law was once held in the highest esteem. Over time, however, it has fallen far down the list of respected and trusted professions. The credibility of attorneys is now near the bottom of the list, just ahead of members of Congress. This decline did not happen overnight and cannot be repaired overnight.
Television and comedians are responsible, in some part, for the decline. The days of “Perry Mason” have been replaced by dramas and countless television advertisements aimed at accident victims, wives and husbands considering divorce, and many others who might have a claim based on a defective product or failed investment. Yet, most of the damage has been self-inflicted.
Attorneys pay the price for this decline in reputation. Attorneys as defendants often face an uphill battle in defending against legal malpractice suits. Clients expect attorneys to do whatever it takes to win, even if it may cross ethical and legal boundaries. Quick-fix online services or attorney-less transactions continue to increase. And the pressure on otherwise professional attorneys has been further exacerbated by a struggling economy where every attorney must fight for business and to meet client expectations.
The most obvious manifestation of the decline has been the seemingly endless stream of attorney jokes capitalizing on this new “do anything, say anything” perception. What attorney has not heard the joke about how to tell when attorneys are lying? The answer: their lips are moving. Such jokes only facilitate the decline of the reputation of all attorneys.
Courts, bar associations and bar leaders have recognized the problem and are taking aggressive steps to address it. Professionalism among lawyers has become a recurring theme of bar conventions and lectures.
Individual judges (on a case-by-case basis), bar associations and courts charged with regulating attorney professionalism are moving forward to address this issue. Last month, a new rule went into effect in California requiring newly admitted attorneys to swear a civility oath, through which attorneys will promise to act “with dignity, courtesy and integrity.” The American Board of Trial Advocates supports every newly admitted attorney nationwide taking this oath of civility.
Other state bars have gone further. The Florida Bar recently enacted a Code for Resolving Professionalism Complaints, providing a process to address professionalism issues in Florida. Most states now have commissions on professionalism, and some are moving to give them the ability to more effectively address the issue.
Several specific examples of unprofessional conduct have emerged as targets for action. To avoid the hot-button professionalism issues, here are some tips for staying out of judicial hot water.
Zealous Advocacy, Not “Scorched Earth” Warfare
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. Contrary to the perception of many attorneys, legal representations should not be personal, even when opposing counsel attempts to make it so.
Personal attacks do little to convince a court or an opposing party of the merits of a client’s position. Combined with litigation or negotiation tactics aimed at creating undue harassment, these strategies expand litigation, increase expense and otherwise impugn the integrity of the practice of law.
Favorite techniques of recent vintage include the service of papers on holidays, refusals to accommodate extensions or continuances based on personal reasons, and hidden traps aimed at catching opposing counsel by serving unrelated papers or filings. Although certain to trigger a reaction, these tactics rarely work. Inevitably, a judge will hear the issue and the biggest loser is often the attorney attempting to “pull a fast one.”
Typically, judges extend deadlines, grant relief or otherwise take action to refocus the process on the merits of the claim. Usually there is no specific reference to the professionalism of conduct at issue (although courts are increasingly calling attorneys out). Yet judges remember the next time that the attorney appears, and the damage to the credibility and effectiveness of the attorney can never be measured. In an attempt to “zealously represent” a client, such attorneys instead impair their credibility as advocates.
Disagree Without Being Disagreeable
The New York State Standards of Civility observe that “lawyers can disagree without being disagreeable.” While certainly there are attorneys who are difficult, it never helps 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.
When this personal component makes its way into a representation, the entire process suffers.
Clients quickly seize on the idea that opposing counsel is “evil” without regard to the merits of their claim. It makes resolution of the claim much more difficult, and in some cases impossible.
Consistent with the bar rules in every state, the focus of any representation should always be on the merits of a client’s position, not the behavior (or misbehavior) of opposing counsel.
Tricks, harassment, subterfuge and “doing or saying whatever it takes” make that difficult. Worse yet, it diminishes all participants’ perception of the attorneys involved and the legal profession as a whole.
The fact is that rude or obnoxious behavior never moves the ball forward, nor does it help clients achieve their goals. If anything, such behavior leaves opposing parties even more entrenched in their positions. Unprofessional behavior by one attorney never justifies unprofessional behavior in response.
Treating the Practice of Law as a Profession
Notwithstanding the increasing consolidation of legal services through mass marketed legal representations, the practice of law remains a profession involving real people with real problems. In the end, every representation involves someone who has sought the assistance of an attorney. While there may be similarities between one client’s problems and many others’, the fact remains that every representation involves a unique personal component.
If the personal component is eliminated, then the practice of law become just another service industry. Unfortunately, when that happens, the risks increase dramatically, especially for a legal malpractice claim or a bar grievance.
Indeed, if clients believe that only their attorney’s conduct dictates the outcome, and not the facts or circumstances of the claim, then every case where the result does not meet the client’s expectations becomes a potential legal malpractice claim. If only the attorney’s conduct dictates the result, then the client will conclude that it must be the attorney’s fault if the result is not what the client wanted.
Much more is at stake than an individual attorney’s or law practice’s risk of a legal malpractice claim or bar grievance. Every unprofessional act by any one attorney affects not just that attorney but the reputation of the profession. It is why professionalism has become more than just a continuing legal education requirement. It has become a necessary step for the survival of the practice of law as a profession. •