|Oregon State Bar Bulletin MAY 2010|
The role of lawyers and judges is to help people in our legal system simultaneously exercise their rights and reach the common good under a rule of law. Our mandate of professionalism emphasizes the roles that judges and lawyers alike have in maintaining the integrity of the judicial process, protecting the public and ensuring the future of our profession.
Justice Sandra Day O’Connor explained: “Lawyers possess the keys to justice under a rule of law, the keys that open the courtroom door. Those keys are not held for lawyers’ own private purposes; they are held in trust for those who would seek justice, rich and poor alike.”1 Professionalism can be defined as the continuous affirmation in our day-to-day actions that we are striving for the higher ideal of justice for our clients and ultimately for the public good. When we step into the federal courthouse in Portland, lawyers are reminded of their solemn commitment to professionalism: “The First Duty of Society is Justice.” It’s difficult to convince clients, other lawyers and the court that you are fulfilling that duty if you are behaving as though you are ready to engage in a cage fight.
Professionalism and ethics are not synonymous. Ethics rules mandate minimum behavioral requirements, which if not met, usually result in some form of discipline from the state bar association, the regulatory body that oversees all lawyers. Professionalism embodies aspirational goals that lawyers, as practitioners of a distinguished profession, should strive to meet when dealing with each other, the court and clients. Conducting oneself professionally helps ensure public trust and confidence in the integrity of the justice system.
Professionalism also demonstrates the lawyer’s integrity and respect for the judicial process, which in turn engenders credibility. In our profession, credibility is the currency of the realm. No lawyer gets much accomplished for a client, whether in the courtroom or in the conference room, unless he or she has built a foundation of credibility upon which to conduct the client’s business. This enhanced credibility of the lawyer in the eyes of opposing counsel, the court and the jury inevitably helps a lawyer advocate towards an efficient and fair resolution of a dispute. Acting professionally helps to better focus opposing counsel, the court or the jury on the issues for decision rather than on the conduct of the lawyers, avoiding a scenario that often leads to a written and oral record clouded with personal attacks and other boorish noise.
Professionalism and effective advocacy go hand-in-hand. Professionalism begets trust, and cooperation is sure to follow closely behind. This trust and cooperation translates to lower costs of litigation and a higher probability of an early and fair resolution.
Professionalism among lawyers and the court also makes the practice of law a more fulfilling life. A lawyer’s good reputation — the legacy that remains beyond one’s life — will be the better for having acted with professionalism.
Finally, professionalism is necessary to maintain the integrity of the judicial process and the public’s confidence in the judicial system. Professionalism increases public confidence in individual lawyers and judges as well as the judicial system. The public has a greater respect for the judicial process and the results of that process if the lawyers and judges exhibit professionalism while working through a dispute. If judges and lawyers do not act to ensure professionalism, through legislative action the public may seek changes to the judicial branch or alter the exclusive privilege of lawyers to represent clients before the courts or in legal matters.
Causes of Unprofessional Conduct
Unprofessional conduct is the result of a number of factors. First, unprofessional conduct may result from a belief that a lawyer is effective only if he or she acts like a “Rambo litigator,” “hired gun,” “junkyard dog,” “hard fighter” or “bulldog.” Some lawyers who labor under this belief are often compensating for a lack of experience, skill or confidence.
Second, client perceptions — that their lawyer must be obnoxious to achieve successful results or outcomes — are sometimes a factor in unprofessional behavior. Some clients are convinced that litigation should be conducted like armed combat against an enemy, and such clients may shop around until they find a lawyer or firm they perceive to have a “Rambo litigator” style. When we encounter prospective clients who subscribe to this philosophy, we should stop to consider whether we want to represent such clients. Often, they are the clients who criticize your judgment, find ways to dispute your fees and never seem to be happy with any result you obtain for them.
Third, the adversarial nature of the litigation process or a tense business transaction can be a factor. But while the legal process is adversarial it need not be acrimonious. We should strive to agree to disagree and not resort to personal attacks, condescending comments and threats of sanctions motions, whether orally, in briefs or in letters or e-mails, in an effort to get our way or to simply harass our opponent.
Fourth, the adversary system is inherently stressful. Practicing law is difficult enough without artificially ramping up the stress level. Be mindful too that at any given time an opponent might be coping with stress, perhaps significant, because of workload, events in his or her personal life or other factors.
Fifth, the business of practicing law can be a factor — the bottom line of the law firm or law office environment. Billable hours, high case volumes, insufficient support staff, administrative chores, client expectations, marketing and other obligations and duties can result in a “piling on” feeling of despair. The sheer weight of these responsibilities can make it difficult for us to be civil to one another, and that’s when professionalism suffers.
Sixth, and finally, are size and technology. As the bar’s membership grows, there is less opportunity for its members to know each other. You’re less likely to be rude and harsh toward a lawyer you’ve known for some period of time and will deal with again, than you are toward a lawyer you’ve never met and likely won’t encounter again. Technology hampers collegiality because it allows us to insulate ourselves from direct, real-time contact with one another. Meetings and phone calls to discuss a new case, confer over a motion or discuss trial exhibits and jury instructions are more likely to foster professionalism between lawyers than sending e-mails, texting messages or faxing letters back and forth.
Costs of Unprofessional Conduct
For starters, the costs of unprofessional conduct include a diminished quality of professional and personal life. We aren’t hockey players. Do we want to spend eight, 10 or 12 hours a day engaging in the verbal and written equivalent of body-checking each other into the boards each time we interact with one another? We don’t, and common sense tells us why: we can’t behave badly day after day, for weeks, months and years of practicing law without becoming that personality in all aspects of our lives. Ultimately, the pernicious effect on one’s family, friends and colleagues over the course of a 30- or 40-year career should be obvious.
Without professionalism lawyers are simply pieces in a game of survival of the fittest. In such a model, brute force dominates and what is right and just is often relegated to secondary importance or completely overlooked. In effect, lawyers devolve into mere agents of their respective clients’ interests without regard to the broader picture of public good.
Unprofessional conduct also distorts the judicial process and “Equal Justice Under Law;” increases financial, business and personal costs to parties; inflicts personal stress on clients, lawyers and judges; causes personal and professional relationships to deteriorate; erodes personal physical and mental health; damages or destroys your reputation among colleagues and the public at large; and diminishes your ability to attract desirable clients.
The Relationship Among the Rules and Professionalism
Oregon’s Rules of Professional Conduct (RPC or ethics) and the various state and federal rules of procedure and evidence are mandatory rules. Professionalism, however, is a standard to which lawyers should aspire. Professionalism picks up where the ethics rules leave off. Professionalism means following the spirit of the rule, not just the letter of it, and the willingness to go beyond what is required to extend courtesies and accommodations to colleagues, including opponents, where doing so imposes no detriment on your client.
The Oregon State Bar’s current “Statement of Professionalism,” was adopted by the OSB House of Delegates and approved by the Oregon Supreme Court, effective Nov. 16, 2006. A “Statement of Professionalism” also has been adopted by the United States District Court for the District of Oregon. Other standards may apply in Oregon as well, as many professional organizations have adopted Professionalism goals. See, for example, the Multnomah Bar Association’s “Commitment to Professionalism,” adopted June 1, 2004. These documents may be found on the Oregon State Bar’s Professionalism web page, www.osbar.org/onld/professionalism.html.
Whether it’s a court or an organization that has adopted a statement of professionalism, the fact that it has embraced those ideals demonstrates the expectation that a standard of conduct higher than the floor created by the ethics rules applies. Simply put, a statement of professionalism sends a message that it is not enough for lawyers to comply only with the ethics rules or rules of procedure.
Moreover, as a self-regulating profession, lawyers have the primary responsibility of ensuring professionalism. While a wide range of options are available to a lawyer to effectively deal with the unprofessional conduct of another lawyer, instances exist when a lawyer must at some point present the issue to the court for resolution.
When to Bring Unprofessional Conduct to the Court’s Attention
Unprofessional conduct should be brought to the attention of the court only as a last resort when a party’s rights are prejudiced or there is a real threat of prejudice. Lawyers — the persons charged with resolving differences — are in the best position to resolve professionalism issues. A lawyer may take a number of steps to obviate the need for court intervention. If those efforts are unsuccessful or futile, then the matter should be presented to the court after the appropriate conferral. Consider these three steps when confronting what you perceive to be a lack of civility.
First, before making a judgment about whether a lawyer has acted unprofessionally, determine the facts. A lawyer’s conduct is often caused by circumstances outside his or her control. For example, if a lawyer is not producing responsive documents in a timely manner, the delay may be caused by the actions of the client rather than the lawyer. Similarly, a delay in responding to requests for scheduling or conferral may be caused by another professional commitment or even a personal issue. Effective communication can often reveal whether there is an issue of professionalism. A telephone call or e-mail to the lawyer, co-counsel or an assistant can often clear up the matter. The bottom line is to get your facts straight before operating on the assumption that a lawyer is acting unprofessionally. With a full picture of the facts, you can effectively respond.
Second, when faced with unprofessional conduct, the first strategy may be to ignore it. The conduct may not be worth acknowledging, and at times a decision to not respond to unprofessional conduct will send the signal to the offending lawyer that unprofessional conduct will be ineffective. Some lawyers, often those who are more experienced, use unprofessional conduct as a tool to throw their opponent off balance. The offending lawyer, however, may abandon the costly approach of unprofessionalism if it proves ineffective. Sometimes ignoring unprofessional behavior requires patience, even a lot of it, and it should never be ignored if there is a real threat of prejudice to the client. Mostly, however, demonstrating that the behavior won’t work and focusing on the merits of the case often is the best way to put an end to such tactics.
Third, after exercising judgment as to whether to respond to the unprofessional conduct, directly informing your opponent of the unprofessional conduct can be effective. Even those who act unprofessionally do not like to think of themselves as having acted in such a way. They might think of themselves as fighting hard or being zealous for their client. Reminding the other lawyer of basic principles of courteous or fairness or referring to the applicable standards of conduct promulgated by the court, however, can cause the other lawyer to moderate or stop the behavior.
If informal efforts are not successful, an issue of unprofessional conduct should be presented to the court if the conduct is interfering with a party’s rights or the “just, speedy and inexpensive determination” of an action. FRCP 1; ORCP 1 B. Unprofessional conduct between lawyers that is merely rude, bothersome or petty should not be brought to the attention of the court unless it begins to interfere with discovery or the case’s overall progress. A good guideline is that unprofessionalism should be brought to the attention of the court either when an ethics or court rule is clearly implicated or when a history of sufficiently documented unprofessional conduct demonstrates a threat to the rights of a party.
Obviously, considerations of time and cost are at play, but these considerations must be weighed against the potential benefit of a favorable ruling and more generally addressing the unprofessional conduct.
How to Bring Unprofessional Conduct to the
Attention of the Court
The nature of the conduct determines how the conduct should be brought to the court’s attention. If the unprofessional conduct occurs during trial or hearing, the court usually will address it without the need for a lawyer to call attention to it by objection or request for a side bar. If the conduct occurs outside the presence of the court, a request for a pretrial conference may be appropriate to address the issue. If an issue arises during a deposition, judges often are available by telephone to immediately address the problem. Other instances will require a formal motion.
Before a motion can be filed, however, the lawyer must have a personal or telephone conference with opposing counsel on issues or disputes. Oregon’s conferral rules, Local Rule 7.1 (federal) and UTCR 5.010 (state), require a “good faith” effort to confer.
These conferral rules require that the lawyers actually talk or explain in a certificate why conferral did not occur, and these rules are often strictly enforced.2
The conferral rules address the situation in which a lawyer may be obstructive or dilatory in the conferral process. If a lawyer refuses to confer, simply include that in the certification. A clear refusal to confer, however, does not happen frequently. The problems most often arise when a lawyer chooses not to provide sufficient information for a meaningful conferral. For example, some lawyers choose not investigate whether there may be responsive documents and simply “stand” on their objections. The failure of a lawyer to determine if requested documents actually exist can lead to the parties briefing and courts ruling on the discoverability of documents that do not exist. This scenario is costly to the parties and the court when it ends up ruling on hypotheticals.
Lack of Experience Can Play a Role
Often times, unprofessional conduct is the product of a lack of experience or a desire to compensate for inexperience. In some instances, inexperienced lawyers neither fully understand that they are expected to be professional, nor understand that a professional approach is the most effective, nor do they understand what is or is not professional. In yet other instances, an inexperienced lawyer may attempt to make up for lack of experience by engaging in short-sighted and obnoxious strategies to gain an advantage, however short-lived. Sometimes, inexperienced lawyers are told or “taught” that being subjected to sharp practices is just a right of passage — part of the hazing process. This “tradition” perpetuates unprofessionalism.
Responsible mentorship of younger lawyers is a key to instilling professionalism. Oregon law schools are answering the call to teach future lawyers that professionalism is expected and effective in law practice. The New Lawyers Division of the Oregon State Bar and various bar associations have mentorship programs. In addition to these formal programs, judges and lawyers at every opportunity should reach out to fellow lawyers — in words and deed — to spread the message of professionalism.
Professionalism is consistent with that shared value to do good that led us to law school. The citizens of Oregon and members of the bench and bar who each hold the privilege to serve the public expect and deserve professionalism in our judicial system. We must constantly renew our sense of commitment to our court system and the public good. The judges and lawyers of Oregon are in partnership to support one another to live the ideal of professionalism.
Whatever a lawyer may gain by unprofessional conduct is frequently short-lived. Unprofessional conduct is subject to the law of karma or that proverbial boomerang that returns to hit its thrower between the eyes. In our Oregon legal community, conduct unbecoming of our profession is noticed by other lawyers and eventually within the circle of judges. A lawyer can labor for years to build a good reputation, but a single act of unprofessionalism can cause that reputation to evaporate.
We should avoid engaging in unprofessional behavior even if the other side is doing so. We also should refrain in argument and written submissions from personal attacks or criticisms of opposing counsel. Model professional behavior when dealing with all others encountered in your daily practice, especially younger lawyers. These acts will reward the lawyer, the client and the public we serve.
1 Speech, “Professionalism,” Associate Justice Sandra Day O’Connor, 78 Oregon Law Review 385, 390 (Summer 1999).
2 See, for example, Section 4(A)(3) of the Multnomah County Civil Motion Panel Statement of Consensus: “[The certificate] must either state that the lawyers actually talked or state facts showing good cause why they did not.”
ABOUT THE AUTHOR
The Hon. John V. Acosta is a magistrate judge of the U.S. District Court for the District of Oregon. Richard Vangelisti practices plaintiff’s personal injury law in Portland. The authors serve as members of the Oregon Bench and Bar Joint Commission on Professionalism.
© 2010 Hon. John V. Acosta