November 2007

Civil Actions

The importance of professionalism and civility to the integrity of the profession

by WSBA President Stan Bastian

What does it mean to be a professional? Every practicing attorney has his or her own answer to that question, and many may answer that, at least in part, being a professional means complying with the Rules of Professional Conduct. There is certainly nothing wrong with such an answer. The duty to represent a client must always be within the bounds of the rules of court, and the Rules of Professional Conduct. However, most of us expect a higher standard than that. The RPCs govern what a lawyer must do or shouldn’t do. Professionalism, on the other hand, is more than compliance with the rules of ethical conduct. It is what a lawyer should do. Much of the time, unprofessional conduct is, quite simply, a lack of good manners. The lawyer who fails to act with courtesy and good will towards colleagues establishes a reputation as unprofessional and uncooperative.

There are numerous causes of unprofessional conduct and incivility. Stress, lack of mentoring, loss of collegiality created by a large population of attorneys, overwork, and the competition to find and keep clients are likely common problems. Some attorneys misunderstand the desire to zealously represent clients and cross the line of effective representation into unacceptable behaviors. However, zealous representation is not an excuse for rude behavior or bad manners.

Incivility is not a professional requirement, but, sadly, that fact is often forgotten. Every attorney has experienced unprofessional or uncivil conduct by a colleague, and unfortunately it is one of the most commonly stated reasons for abandoning the practice of law for another career.

The consequences of unprofessional conduct and incivility go beyond the reputation of the individual lawyer. Lawyers who engage in unprofessional and discourteous conduct impede the administration of justice and cause the public reputation of the legal profession to suffer. The lack of cooperation and candor by attorneys increases the costs of legal services and court costs and wastes limited judicial resources, creating an access to justice issue. The public and other lawyers become skeptical of the ability of the legal profession to regulate itself. Finally, unprofessional conduct diminishes the public image of lawyers.

The WSBA has adopted a Creed of Professionalism, and a copy hangs in almost every state courtroom. The goal of the conduct encouraged by these rules and standards is, at least in part, to make the practice of law more rewarding, to generate an improved image of the legal profession, and to further the high ideals of the rule of law. The preceding statement to the Rules of Professional Conduct puts it best, as follows:

The Rules of Professional Conduct point the way to the aspiring lawyer and provide standards by which to judge the transgressor. Each lawyer must find within his or her own conscience the touchstone against which to test the extent to which his or her actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit no compromise.

With that in mind, I have developed my own list of 10 rules of conduct and offer them here to prompt your thoughts and response. In my opinion, the practice of law would be more professional, civil, and tolerable if each lawyer followed these rules. It may also help improve our public image.

1. Respect your client. Your clients’ interests should be your primary concern when practicing law. Take time to understand your clients’ goals, and understand that many are experiencing pain or frustration in their lives. You may not approve of their conduct, but you were hired to be on their side and help them solve the problem.

2. Respect your colleagues. Join a section, specialty bar association, or volunteer for the state bar. Incivility is bred, in part, by a lack of familiarity. The more we know our professional colleagues, the less likely we are to be unprofessional. When confronted with unprofessional conduct by a colleague, don’t respond in kind. Treat others with respect and dignity, regardless of how they treat you.

3. Respect the legal profession. Win or lose, you represent the legal and judicial system to the public. Don’t complain about the judge or the other attorney to your client. Respect the process, and the other participants, even if you are not happy with the most recent development. As an attorney, you set the tone for your client, and he/she likely won’t display respect for the system if you don’t. It’s OK to be disappointed, but it’s not OK to be disparaging. As officers of the court, it is our duty to always support the rule of law.

4. Be honest. Don’t make unreasonable promises to the judge, other attorneys, or your client. If you make a promise, keep it. Don’t misrepresent the facts to anyone. Admit your mistakes when necessary, and correct misunderstandings and misinformation. Nobody’s perfect, and your clients don’t expect you to be. Telling the truth is always the best policy, even when doing so is difficult.

5. Be timely. This is a big source of client frustration with lawyers. Call them back, answer their letters, reply to their e-mails, and keep them informed. Treat the court and colleagues in the same way. Be timely when filing pleadings and responding to discovery requests.

6. Read and know the rules. The rules are there for a reason, and a practicing lawyer should always be familiar with them. Don’t depend on the judge or the other attorney to know the rule for you. Ignorance simply wastes the court’s time, your opponent’s time, and your clients’ money.

7. Remain objective. The problems of your client are not your problems. Your job is to help solve those problems, and you can do that best only when you remain objective. Don’t practice angry. Behave in a way that will get a positive result.

8. Avoid unnecessary conflict. The practice of law is already stressful enough. Why create unnecessary conflicts and disputes? If your adversary asks for a concession, favor, or time extension and it is within your power to say yes — then by all means grant the request. Why not? Some day you will be in the position of making a similar request. Take into account the demands on and limitations of others.

9. Be prepared. Don’t expect the judge or opposing lawyer to solve your problems. Try to figure it out yourself. Work hard and come up with your own solution, and be prepared with a proper legal argument.

10. Practice with integrity. Professional conduct and civil behavior should not exist only in the courtroom, or when the judge is present. It has to be part of your daily practice. Use the discovery process properly, and not with the intent to harass or oppress your opponent. Follow the rules, speak the truth, and seek the truth. Take action with the proper motive, not with the intent to harass, annoy, or burden. Your objective should never be to oppress or inconvenience the opponent. Remember, your objective is to solve your client’s legal problem. That should be your only objective when representing a client.

I am interested in your comments and response to these 10 rules and to the question that began this essay: “What does it mean to be a professional?” There is no correct answer. In fact, the answer is not nearly as important as the discussion. It is important for people to think about the question and develop an answer on their own. I am very interested in your thoughts, and my intent is to devote another President’s Corner to the responses received, if any. 

Stan Bastian can be reached at stanb@jdsalaw.com or 509-662-3685.