Professionalism Benefits Attorneys, Their Clients, and the Legal Community
The Bencher—March/April 2019
By Judge David W. Lannetti and Morgan A. McEwen, Esq.
Growing up, many of us were taught the Golden Rule: “Do unto others as you would have them do unto you.” Despite our parents’ or teachers’ attempts to ingrain this principle in our brains, many attorneys seem to have forgotten this adage, succumbing to the belief that effective client representation requires sacrificing civility, integrity, and dignity. Passionate client advocacy and legal professionalism are not mutually exclusive, however, and “win at all costs” need not be the mantra that drives our practices.
While all jurisdictions have rules of professional conduct—ethics rules—that attorneys are required to follow as a condition to practice law, professionalism focuses on higher aspirational standards. Although ethics mandates and professionalism principles can clash at times in an adversarial system, that is the exception. In most instances, a commitment to professionalism actually enhances attorney advocacy, better serves clients, and creates a less stressful and more fulfilling legal environment.
Ethics vs. Professionalism
Mere compliance with a jurisdiction’s ethical requirements means that we are practicing at the minimum acceptable level to avoid disciplinary action. Professional conduct, on the other hand, involves actions that exceed these ethical minimums and aims toward aspirational ideals. By definition then, attorney conduct can be both ethical and unprofessional.
Although the American Bar Association Model Rules of Professional Conduct focus solely on ethics, many jurisdictions and bar associations have adopted principles of professionalism or civility codes they recommend attorneys adhere to. Additionally, more than half of the 50 states have incorporated some sort of mandatory professionalism training, often geared toward new attorneys. These professionalism principles and training courses aim to instill in attorneys those same characteristics that our parents and teachers wished to impart to us long before we attended law school: civility, integrity, and dignity.
The role civility plays in professionalism was perhaps best summed up by Associate Justice Anthony M. Kennedy of the Supreme Court of the United States:
Civility is the mark of an accomplished and superb professional, but it is even more than this. It is an end in itself. Civility has deep roots in the idea of respect for the individual. We are civil to each other because we respect one another’s human aspirations and equal standing in a democratic society. We must restore civility to every part of our legal system and public discourse. Civility defines our common cause in advancing the rule of law. Freedom may be born in protest, but it survives in civility.
One who is civil is polite, reasonable, and respectful.
Professionalism also requires a commitment to integrity, which means holding ourselves to a code of moral principles. As research professor Brené Brown noted, “Integrity is choosing courage over comfort; choosing what is right over what is fun, fast, or easy; and choosing to practice our values rather than simply professing them.” A person with integrity is honest, trustworthy, and morally upright.
Additionally, a professional is able to view his or her actions from the perspective of others and believes in the dignity of all people. As Angela Merkel proclaimed, “When it comes to human dignity, we cannot make compromises.” Dignity requires empathy, compassion, and the pursuit of justice. In the truest sense, this means approaching those to whom we come into contact just as we would want them to approach us.
The preamble to Virginia’s Principles of Professionalism states, “Without losing sight of what lawyers do for their clients and for the public, lawyers should also focus on how they perform their duties.” In general, acting with professionalism means performing our duties as attorneys and judges with civility and integrity while treating others with dignity.
Examples of Professionalism
Unfortunately, unprofessional conduct has become commonplace in the legal profession. Despite the view that such behavior equates to effective client advocacy, the reverse more often is true; a commitment to professionalism frequently results in better advocacy and more favorable results for clients while presenting a less stressful work experience for attorneys. While it is easy to proffer platitudes of professionalism, it is more difficult to discern how to put the concept into practice. As alluded to in various statewide principles of professionalism, attorneys encounter opportunities almost every day to demonstrate professionalism during their interactions with opposing counsel, with their clients, and with the court.
When dealing with opposing counsel, cooperate as much as possible regarding procedural and logistical matters. This includes scheduling discovery, negotiations, meetings, hearings, and transactional gatherings to accommodate opposing counsel’s schedule whenever possible. Be punctual when attending scheduled events. Notify opposing counsel of any schedule changes as soon as possible. Agree whenever possible to reasonable requests for extensions of time. Do not use discovery to delay or harass. Return telephone calls, emails, and other communications promptly. Avoid hostile, demeaning, or humiliating language. More generally, recognize that any conflict is between the clients, not their lawyers.
With respect to clients, keep them informed of the case status. Explain to them that you can passionately represent their interests with diligence and dedication while being civil to opposing counsel. This includes cooperating and coordinating with opposing counsel whenever possible, as well as acting cordially—including shaking hands—with opposing counsel, whether at a private meeting or in open court. Let your clients know that judges will not tolerate the courtroom drama and brawling tactics clients may have seen on television or at the movies. In short, ensure that clients understand that civility and treating others with dignity is expected within the legal community and that it will reflect negatively on them if you act unprofessionally.
Regarding interactions with the court, arrive for all appearances early and meet with your client before entering the courtroom. Treat all judges and court personnel with respect and courtesy and avoid any conduct that might offend the dignity or decorum of the institution. This includes inappropriate displays of emotion or unbecoming language directed at the judge or other individuals in the courtroom. Explain to your clients that they also should act properly in the courthouse. Be prepared to properly advocate on your client’s behalf, including filing briefs in advance of hearings when appropriate and bringing precedential case law to the judge’s attention. Avoid ad hominem attacks, recognizing that assailing opposing counsel instead of his or her argument is a sign that your position most likely is weak. Most importantly, recognize that your reputation—which usually is directly related to your commitment to professionalism—carries great weight with both judges and other attorneys.
Professionalism Serves Clients
Professional conduct and an attorney’s duty to his or her client usually are aligned. Moreover, when we strive to attain the aspirational ideals of professionalism, clients usually are better served.
Professionalism can contribute to quicker, less expensive, and more innovative outcomes for clients. For example, resolving matters with opposing counsel without court intervention, or at least narrowing the issues before filing a motion with the court, can save time and money for your client and perhaps result in a resolution that is unavailable through litigation. If issues cannot be worked out without court involvement, consider filing a supporting brief with any motion, even if local rules do not require it. Clearly articulating your client’s position not only will fully inform opposing counsel of your position and its basis, but a brief provides you the opportunity to present the facts, frame the issues, and highlight the supporting case law in a light that favors your client’s position, increasing the chances that you will prevail.
Additionally, agreeing to reasonable requests from other attorneys, such as continuance requests, usually is in your client’s interests. Because judges almost always grant such requests, your concurrence allows you to appear reasonable to the court while saving your client the time and expense of a court appearance. Further, granting a concession to opposing counsel can pay dividends in the future, as they are more likely to agree to any future request you have if you agreed to one of theirs previously.
Treating court personnel with appropriate respect and courtesy can also work to your client’s advantage. Courthouse and courtroom clerks know the ins and outs of courthouse procedures. With their support, you will be instructed on the proper forms and procedures, allowing you to solve problems for your clients in an efficient and effective manner. Without their support, your legal shortcomings will quickly be revealed, most likely to your client’s detriment.
Limits of Professionalism
Although it is usually true that your client’s interests are best served when you act reasonably and professionally toward opposing counsel, the court, and others in the legal community, professionalism is not without its limitations. Adherence to the fiduciary duty to your client and acting professionally can conflict at times.
In an adversarial system, always remember that your ultimate duty is to your client and that you must ensure that your actions—even if in the interests of professionalism—do not prejudice your client. For example, you cannot ignore the duty you have to your client by revealing an impending deadline to opposing counsel if it would prejudice your client. Despite the normal dictates of decorum, you also cannot carry on a conversation with a represented party who contacts you unless you have permission from that party’s counsel. Although such actions almost certainly would constitute proper—and, indeed, expected—behavior in other industries, the legal profession is unique in that it requires us to sacrifice some degree of professionalism when necessary to honor the ultimate fiduciary duty we have to our clients.
Attorneys Benefit Personally from Practicing Professionalism
In addition to assisting clients, practicing professionalism can also benefit attorneys personally. When you treat others with civility and dignity, they are more likely to reciprocate, which ultimately contributes to a more pleasant work environment and more satisfying interactions with your legal colleagues and clients. These positive experiences can reduce the level of stress in a vocation notorious for its high rates of depression, substance abuse, and suicide. The aspirational ideals of professionalism can also be applied beyond your “day job” by using your legal training to serve society more broadly via volunteerism, whether through pro bono activities, voluntary bar organizations (including the American Inns of Court), or community service. This sense of balance almost certainly will make your legal practice, and your life in general, more fulfilling.
Professionalism is not required within the legal profession. There are no mandatory professional rules that instruct us what we can or cannot do or that mete out consequences to those who act unprofessionally. However, the lack of a promulgated minimum level of professionalism does not mean that we cannot—or should not—set a high bar for ourselves and aspire to rise above it. When we truly treat others as we would like to be treated, especially when we are not required to do so, we invite others to treat us the same way. In doing so, we create endless opportunities for enhanced client advocacy, better service for our clients, and a more enjoyable and fulfilling legal environment.
Judge David W. Lannetti, of the Norfolk Circuit Court in Norfolk, Virginia, is chair of the Virginia State Bar Standing Committee on Professionalism. He is a member of the James Kent AIC. Morgan A. McEwen, Esq., is a Norfolk Circuit Court law clerk and a member of the I’Anson-Hoffman AIC. The views in this article are those of the authors alone and should not be mistaken for the official views of the Norfolk Circuit Court.