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Attorney Ethics and Civility - Not an Oxymoron

ATTORNEY ETHICS AND CIVILITY - NOT AN OXYMORON

            Notwithstanding all the attorney jokes that reflect so poorly on members of that profession's integrity, attorneys are in fact subject to an extensive body of rules that govern their professional conduct.  Most people with a basic code of morality or civility would find these rules governing attorney conduct at least laudable.  Most of the States in the Intermountain region have adopted the Rules of Professional Conduct ("RPC") promulgated by the American Bar Association.  Skeptics may believe that those rules represent nothing more than lawyers adopting rules written by lawyers to control lawyer conduct, and may ask "How tough can these rules be?"  In fact, they are extensive and arduous, and they are enforced by the bar associations.

            In most respects, the RPC can only provide a general framework for moral, ethical and competent behavior in the practice of law.  Even the Preamble to the RPC specifically notes this fact, and further states that an attorney must be guided by personal conscience and approbation of professional peers.  The skeptic may observe "not only are the rules written by lawyers for lawyers, the lawyers get to supplement the rules with their own conscience and the approval of their peers."  However, again, the RPC provides a higher moral code than believed by the general public.        

            A dishonest or unethical person who also happens to be a lawyer may elect to ignore the RPC and its provisions, and engage in dishonest or unethical behavior just like a non-lawyer commits unethical acts.  However, for the most part, lawyers at least try to abide by the RPC and related rules governing professional and ethical conduct.  The RPC contains rules that govern the relationship between the lawyer and client, rules regarding advocacy and behavior in court, and rules controlling interaction with third persons, among other things.  The underlying purpose of these rules is to give some assurance that the client is receiving undivided loyalty, and honest and fair representation.  For example, the RPC requires that attorneys act in a diligent and competent manner, and communicate with clients to keep them informed about their matter.  (Ironically, the most frequent complaints about lawyers are that they are not diligent and do not  communicate well i.e. return telephone calls.  Lawyers are people too, and some rules may not be followed as closely as others or as they should be.)

            The RPC contains the cornerstone of the lawyer-client relationship, which is the obligation of confidentiality.  This is the rule that requires the lawyer to keep confidential all information obtained by the lawyer relating to the representation of the client regardless of the source of the information.  This rule provides more protection to the client than is commonly thought.  The RPC also establish the rules regarding conflicts of interest which may preclude an attorney from representing a party.  These conflicts may result from representation of two clients who are adverse, or representation of an existing client that is adverse with a former client, or a conflict caused by the lawyer's personal interest.   Additionally, there are conflict rules that preclude a lawyer from engaging in specific transactions which could harm the client or adversely impact the duty of loyalty.  The Rules prohibit attorneys from making false statements to the opponent, subject to certain exceptions based upon rules of confidentiality, and prohibit an attorney altogether from making false statements to a court regardless of confidentiality rules.

            Contrary to popular belief, attorneys are also guided by rules of civility, which have now been adopted in many states.  Civility is generally understood to mean simply courtesy or politeness.  It is probably safe to say that a potential client has never attempted to engage an attorney because the attorney was courteous or polite.  In fact, clients frequently seek just the opposite, i.e. the meanest or toughest attorney they can find.   The term "civility" is not used by the potential client when seeking an attorney.  However, in recent years, states have adopted rules that in fact specifically require civility.  As other states have done, in 2003, the Utah Supreme Court adopted a body of rules known as the Standards of Professionalism and Civility (the "Standards").  These Standards require attorneys to act in a civil and professional manner, regardless of the ill-will that may exist between the parties.  Attorneys are required to treat all parties in a courteous and dignified manner.  The Standards require that attorneys advise their clients that civility, courtesy and fair dealing are expected and that clients may not demand that an attorney engage in offensive or improper conduct.  Likewise, attorneys are directed to grant extensions and similar accommodations as long as the client is not prejudiced.  Although the Standards contain 20 different rules outlining proper conduct for an attorney, basically the Standards only impose a standard that most attorneys and non-attorneys would find just and reasonable.

            Furthermore, the RPC contain rules that require civility in certain situations.  For example, the civility rules provide that an attorney is prohibited from using means that have no substantial purpose other than to embarrass, delay or burden a third person.  These civility rules require that an attorney treat the opposition with fairness.  Within this concept of fairness, an attorney is precluded, for example, from hiding or obstructing the discovery of adverse evidence, or requesting a third party not to discuss a matter with the opposition.

            Frequently, clients believe that civility or courtesy towards the opponent is a sign of weakness or ineffective lawyering.  Being civil, courteous and professional does not diminish an attorney's effectiveness at advocacy or negotiating.  In fact, there are literally thousands of articles written by judges, attorneys and social scientists supporting the concept that attorneys who act in a civil and professional manner, and avoid personal disputes, are more effective in court and negotiations.  Although clients may believe that the "pit bull" attorney is effective, judges and juries do not respond in a positive manner to attorneys who act in an uncivil or unprofessional manner.  Likewise, even in negotiations, studies have shown that a party who is liked (as well as the party's attorney)  obtains greater advantages and concessions than a party who is disliked.  The obnoxious attorney can also increase the cost of representation significantly.  For example, with the obnoxious attorney, everything becomes an issue and requires more court intervention and hearings than when the attorneys resolve issues in a civil and professional manner.

            Attorneys are required to inform the client of their duty of civility.  In fact, the Standards require that the client be informed at the commencement of the representation of the duties imposed by the Standards on the lawyer.  When a lawyer tells the client that he or she must act in a civil manner, they are not telling the client that they are ineffective advocates.     

            Clients should not misinterpret an attorney's civility as weakness.  Giving extensions to the opposition in litigation or otherwise providing reasonable accommodation is an act of professionalism, not weakness.  Civility does not require that the attorney prejudice the client's interest or not be forceful at the right moments.  But, when there is nothing to gain by a refusal to accommodate a party, then a client should anticipate that the attorney will act in a professional manner.      

            As a profession, lawyers may not deserve to be ridiculed by the attorney jokes.  However, some individual members do, and some of the jokes are quite clever.  So keep passing them on, but remember, as a profession, attorneys are highly regulated, and all but a few take their ethical obligations quite seriously.