For decades, commentators and practitioners have bemoaned the deteriorating level of collegiality in the practice of law. But at the same time, popular culture and advertising have glorified (and financially rewarded) lawyers with a pugilistic character. And research suggests that bullying can go on as much within a firm as between them. Do we have a problem? And if we do, can our usual mechanisms fix it?
While the Rules of Professional Conduct serve as the floor, professionalism is the goal (at least for some). As the Louisiana State Bar Association concisely explains, “Generally, ethics rules tell us what we cannot do and professionalism deals with what we should do.”
We’ve written on professionalism before, as have many others. There is no single definition of professionalism. Many states have promulgated compilations of aspirations for their lawyers, and most are instructive. The Florida Bar has set forth Professionalism Expectations. Examples of the Expectations include refraining from using delay tactics, abstaining from rude and disrespectful behavior, and refraining from imposing arbitrary or unreasonable deadlines on others. The Kansas Bar Association Pillars of Professionalism include communicating regularly with clients about developments, being courteous and considerate toward opposing counsel, giving back to the community through public service, and granting procedural courtesies such as scheduling that are requested so long as it does not prejudice your client. North Carolina’s Professionalism Creed includes representing a client as you would want to be represented, making sure any disputes with opposing counsel remain dignified disputes, and being respectful to the judiciary.
Lack of professionalism can lead to ethics violations
Some conduct is simply unprofessional and offensive. But other conduct is so unprofessional that it crosses the line into an ethics violation.
A Connecticut lawyer was disciplined for filing a motion accusing the judges of being unwilling to “make any meaningful effort” to analyze the facts and the law. The lawyer’s motion included the accusation that the court had disregarded the rules and the law. A New Jersey lawyer was disciplined for repeatedly interrupting a judge and accusing her of engaging in a bullying match with him. A New Mexico lawyer was disciplined for his lack of civility in arguing with a witness, arguing with a judge, and insulting the prosecutor. A judge from California was reprimanded for raising his voice, using profanity and demeaning attorneys practicing before him.
Incivility hurts the legal profession
Among the discussions of mental health issues in the profession recently one may find increasing calls for crackdowns on the kinds of uncivil or unprofessional conduct that is more personal and more harmful. A survey published by the Illinois Supreme Court Commission on Professionalism focused on conduct it defined as “bullying.” That study discussed reported examples of name-calling, shouting, excessive criticism of work, and imposing unrealistic work demands. It claims (at least it says that study respondents claimed) that this type of behavior has become common in the legal profession. As the examples above illustrate, sometimes this conduct results in lawyer discipline. But even when it doesn’t, the survey revealed that being on the receiving end of this type of conduct leads to anxiety, a decrease in productivity, a decline in physical health, and at times, lawyers just leaving their employment. It follows then that their coworkers may indirectly experience the impact of unprofessionalism if they have to take on more work or potentially fix mistakes made by colleagues who are enduring unprofessional opposing counsel, or, worse yet, be forced to handle excessive workloads when picking up cases dropped by lawyers who have just up and quit.
Are professionalism and civility enforceable?
What happens when unprofessional conduct and incivility do not cross the line into an ethics violation? How are lawyers held accountable? For the most part, they’re not, at least not formally. There are only four states that actually mandate civility. [1] So then, what to do?
Some say that aggressive Rambo-type lawyers intimidating their way into legal victories is no longer accepted in the legal profession and that its days are numbered. Others have written that the use of aggressive tactics cloaked as “zealous representation” is also much less tolerated. But will negative commentary be enough to shame lawyers into conducting themselves professionally? Likely not, at least as long as their clients reward them financially for doing so.
Does the lack of market pressure mean that we should enforce civility rules in the same manner as the Rules of Professional Conduct? Some would say yes. But it is a slippery slope, and the difficulty in reaching consensus on what is proper behavior is no easier to reach in the profession than it is for our wider society.
Should lawyers be disciplined for being temperamental, impatient or rude? Strong personalities will sometimes (often?) clash, and what constitutes bullying, unprofessional or offensive conduct is very subjective. But if there are no negative consequences, how will the slide into acrimony be slowed – let alone stopped? There are solid arguments on both sides.
Until we in the Bar figure this out, there are several resources lawyers can turn to for guidance on how to remain civil and professional in their daily practice. Several states have set up committees and task forces to promote professionalism in the legal community. Most states have set up lawyer-mentoring programs to help promote professionalism amongst younger attorneys.
[1] David A. Grenardo, Civility Rules: Debunking the Major Myths Surrounding Mandatory Civility for Lawyers and Five Mandatory Civility Rules That Will Work, 37 Geo. J. Legal Ethics 167 (2024).