We’ve written a lot over the past six years about the Rules of Professional Conduct, and for good reason.  The lawyer conduct rules represent a floor:  when your conduct sinks below the floor, you can merit professional discipline.  But there are other norms and mores in our legal community, namely standards of professionalism.  As the Preamble of the Model Rules notes, the Rules “do not, … exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.”

Without providing a basis for discipline; norms of professionalism nonetheless express a common understanding within the legal community about how a “professional” lawyer acts and the ideals that lawyers should aspire to uphold.

Last week, the Sixth Circuit Court of Appeals provided a good lesson on the value of professionalism as applied to briefs submitted to the court.  In an  opinion recommended for publication, the court affirmed dismissal of a Clayton Antitrust Act complaint based on plaintiffs’ lack of standing, and in the process called plaintiffs’ counsel to task for numerous over-the-top insults directed at the opposing parties in briefs.

The court cited some examples of statements in briefs that plaintiffs’ counsel filed, including that:

  • one defendant “surrendered to [a co-defendant], much in the manner Marshal Petain surrendered France to Adolph Hitler.”;
  • two co-defendants are “intertwined in an incestuous relationship, the likes of which have not been seen since the days of Sodom and Gomorrah.”;
  • a defendant was possibly “affixing its buzzard-like grin” on the region “ready to ravenously pounce upon the medical facilities in these areas like the buzzard swoops down upon the carcass of a dead cow.”;
  • an individual defendant who had stuttered during a television interview was compared to “Porky Pig, a famous Warner Brothers cartoon character, [who] also stuttered.”

This language (and more) in plaintiffs’ filed briefs prompted Judge Amul R. Thapar, writing for the Court of Appeals, to note that “there are good reasons not to disparage your opponent, especially in court filings.  The reasons include civility; the near-certainty that overstatement will only push the reader away …; and that, even where the record supports an extreme modifier, the better practice is usually to lay out the facts and let the court reach its own conclusions.”

After rejecting each of plaintiffs’ arguments in favor of standing, the court concluded by writing, “[We] take a moment to remind plaintiffs’ counsel that, as an officer of the court, he is expected to treat other parties in the case (as well as their counsel) with courtesy and professionalism.  Careful research and cogent reasoning, not aspersions, are the proper tools of our trade…. Counsel will best serve his clients if he remembers this going forward.”

I sit on my state supreme court’s Commission on Professionalism, so this is a subject I think about quite a bit.  Many states have similar bodies devoted to promoting behaviors and attitudes that go above mere adherence to the Rules of Professional Conduct, and many have adopted statements on professional ideals, as the supreme court in my Buckeye State has.

Litigators in particular should view Judge Thapar’s opinion as words to the wise.