Professionalism Means Practicing With Integrity

The Rule

Virtually all U.S. jurisdictions follow some form of the ABA Model Rules of Professional Conduct (“ERs”).  The ERs contain a Preamble that explains the framework for legal ethics – and professionalism, including:

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[5]     A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

[6]     As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

[7]     Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.

Interestingly the ERs do not contain a definition for “professionalism.”  The Rules regulate lawyer conduct by establishing the bare minimum of ethical duties.

Professionalism, on the other hand, is how lawyers treat others.  Some jurisdictions have aspirational definitions of “professionalism” as part of their Business Codes or Supreme Court Rules, even if the definition is not a regulatory mandate.  For instance, Arizona Supreme Court Rule 41(g) previously required that all lawyers refrain from “offensive personality.”   No, really, it did

There were several reported discipline cases for violations of the Rule.  See, e.g., In re Piatt, 191 Ariz. 24, 951 P.2d 889 (1997) (sexual harassment of two clients, exploited and extorted client by telling client that if she didn’t respond sexually, lawyer could no longer represent her, unless paid more money); In re Ziman, 174 Ariz. 61, 847 P.2d 106 (1993) (offensive and profane comment made to an arbitrator); In re Moore, SB-02-0043-D (2002) (asked female client inappropriate, personal questions of a sexual nature, embraced client and asked to see her breasts, asked for meetings at lawyer’s home); In re Medansky,  SB-04-0120-D (2004) (threatened client’s wife with physical violence after contentious divorce hearing) In re Banta, SB-05-0003-D (2005)(used profanity to a physician, profane name in referring to non-attorney justices of peace, called opposing counsel a “liar” and judge’s ruling “crazy”, told opposing counsel at deposition to “go perform an unnatural sex act on himself.”).

Given the questionable vagueness of what constitutes “offensive personality,” the Arizona Supreme Court amended the Rule in January, 2008, to:

(g) To avoid engaging in unprofessional conduct and to advance no fact prejudicial to the honor or reputation of a party or a witness unless required by the justice of the cause with which the member is charged.

The new Comment to the Rule explains:

Lawyers, whether or not engaged in the practice of law, should act honorably and treat others with courtesy and respect. Unprofessional conduct, as defined by Rule 31(a)(2)(E), during the practice of law may result in discipline pursuant to Rules 41(g) and 53(j). Specified conduct outside the practice of law, such as conviction of a felony, Rule 53(h), or engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, Rule 42, ER 8.4(c), and Rule 53(a), may also be grounds for discipline

So what is “unprofessional conduct” while practicing law?  Arizona Supreme Court Rule 31(a)(2)E. explains:

  1. “Unprofessional conduct” means substantial or repeated violations of the Oath of Admission to the Bar or the Lawyer’s Creed of Professionalism of the State Bar of Arizona.

This means do not be rude, belligerent, offensive, or use obscenities or inappropriate gestures when dealing with anyone when you’re acting as a lawyer or working in a law firm.

  • Professionalism includes courtesy, respect, and empathy.
  • Professionalism also includes attitude, demeanor and dress.

The Reality

Professionalism embodies not just a set of standards but an attitude and demeanor.  The following are merely suggestions for appropriate professional demeanor.  These are not intended to embarrass or ridicule any group of or specific lawyer but area stated simply as basic reminders…for conduct that has been an issue more than once.

Professional Demeanor Includes Attire

Regardless of the above-referenced Rule or whether a jurisdiction even has a definition for “professionalism,” many judges have commented upon what appears to be an increasing lack of professional demeanor in court, including the lawyers’ attire.  Remember that in respect for the court and your clients, lawyers are expected to dress appropriately for court appearances.  So here are some reminders about what should and should not be worn in a tribunal (NOTE: PLEASE do not email me with objections to this list or comments about Constitutional rights – these are simply topics that judges regularly raise when asked about professional demeanor):

  • Do wear business suits and dresses that are clean and pressed
  • Do wear ties…if you are male
  • Do wear pantyhose ….if you are female and it is under 120 degrees
  • Do wear dark socks…if you are male
  • Do not display body parts that could distract the court from the case – no matter how bad the facts…
  • Do assure that clothing is clean, neat, and pressed.
  • Do not wear attire more suitable for the beach or a nightclub
  • Do wear appropriate footwear (this does not include sneakers or flipflops)

Of course there are emergencies and exceptions to every rule, but the fact that judges even have to mention these concerns is a bit embarrassing to our profession.  Lawyers discuss with your clients what to wear to court – the same applies to lawyers and law firm staff – dress like a professional and show the tribunal and your clients the appropriate respect for their legal matters.

Remember the concept – you will be treated as you dress.

Professionalism In Tribunals

Common sense suggests that lawyers must show decorum and respect to judges – and their staff.  There actually are at least two Ethical Rules that require decorum – ER 3.5, which states:

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official of a tribunal by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct likely to disrupt a tribunal.

Thus, lawyers must object and disagree with court rulings in a respectful manner, not roll their eyes when a ruling goes against them, and not use language or body language that suggests displeasure with the court.  More blatant, egregious behavior, such as yelling at a judge, witness, or opposing counsel, will result not only in court sanctions, but also discipline by the Bar, and unfortunate media coverage.

Another Ethical Rule, ER 8.4(d) prohibits lawyers from engaging in any conduct “prejudicial to the administration of justice.”  This provision frequently appears in lawyer discipline cases for abusive motions/discovery tactics and conduct that otherwise burdens the legal system.

Your Staff Also Set Your Professional Image

When people call a law firm, who is the first person they encounter?  When visitors come to the firm, who is the first person they meet?  Law firm personnel create the first impression of a law firm.   The law firm has a responsibility to assure that there is proper training of all staff for compliance not only with the Rules of Professional Conduct, but also the firm’s professionalism standards.  There is no Ethical Rule that says a receptionist must be pleasant.  Nor is there any Ethical Rule that says a partner’s secretary/legal assistant must be polite to opposing counsel on the phone.  Yet all lawyers know that at least part of a firm’s image and professional reputation is created by the non-lawyer employees as much as by the lawyers.

Thus, all employees of law firms must abide by the Rules of Professional Conduct that regulate lawyers and maintain the professionalism of the firm.

Ethical Rule 5.3 specifically requires:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Establish written firm professionalism policies for everyone:

  • when and how to communicate with others – clients, opposing parties, opposing counsel, courts, vendors, and prospective clients.  Those policies should include being courteous and respectful to all as well as professional.   There should be a balance between being too abrupt and too friendly….
  • Avoid the use of casual communication methods – such as texting on Facebook messaging
  • All firm personnel – lawyers and staff – need to refrain from reading cell phones while meeting with clients, other lawyers, or ANYONE except to check calendars.
  • Practice with integrity and you won’t need to apologize.
  • Apologize if you offend.
  • Do not burn bridges – a former firm may be your best referral source.
  • Never ever discuss anything about a client matter on social media.

Professionalism Towards Opposing Parties and Counsel

The adage “you get more with honey than vinegar” holds true for lawyers.   Extending common courtesies (extensions of time, promptly responding to reasonable inquiries, etc.) to opposing counsel is both appropriate and expected between lawyers.  This is a topic that many bar association professionalism courses discuss.   “Professionalism” does not equal “weakness.”  Both the Rules of Professional Conduct as well as the Rules of Civil Procedure require that lawyers work together cordially and civilly to schedule discovery and hearings.  Neither set of rules should need to mandate cooperation but unfortunately due to a global misunderstanding of the term “zealous advocate,” many lawyers mistakenly believed that they should be belligerent obstructionists.  Ethical Rule 3.4 prohibits such behavior.

Train new lawyers in the firm’s professionalism culture.  Remind lawyers of the firm’s policies on communication (most jurisdictions encourage responding to telephone calls within 48 hours).  Establish a firm policy about lodging motions for Rule 11 sanctions or Bar Complaints.  Threatening sanctions in every case or filing bar complaints against all opposing counsel not only results in a “crying wolf” mindset about the firm, but also undermines the court’s impression of the competence of the firm.

If the opposing lawyer engages in unprofessional conduct, do not retaliate in kind.  And do not ignore the behavior – ignoring something actually reinforces the behavior because the unprofessional lawyer learns that they can get away with the conduct.  However, instead of immediately seeking sanctions, think about asking the lawyer to get a cup of coffee with you or lunch – approach the situation as an opportunity to remind the lawyer that your legal community is just that – a community – and their behavior affects all of us.  Lecturing also is not productive – it does not work with kids, pets, or belligerent lawyers.  Demonstrating a professional demeanor and treating the lawyer with respect – in spite of his or her actions – and politely asking them why they are behaving that way, will in many situations produce more productive results.

Professionalism on the Internet …..24/7

The internet can be an incredibly useful tool for lawyers to market, research, communicate, and investigate.  The internet also can be an ethical nightmare.  The following are cautions to keep in mind if ANY lawyers or staff or clients ever use the internet.  In August, 2012 the American Bar Association amended the Model Rules of Professional Conduct to add a comment to ER 1.1, the Rule regarding “competence,” to clarify that lawyers must “[. . .] keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology [. . .]”

The internet also may be a minefield for professionalism and ethics issues.  Here is a very quick list of reminders for maintaining a lawyer’s (and law firm’s) professionalism online:

  • Establish firm policies about using the firm’s name on any personal sites to avoid embarrassing search results…
  • Establish firm policies about identifying employment at the firm when commenting on a blog, listserv, or any other public forum.
  • Establish firm policies about “friending” clients, judges, experts, opposing parties and counsel, and yes, even JURORS.
  • Establish firm policies about refraining from discussing ANY CLIENT INFORMATION online without client consent – even if the information is “public record,” that does not give anyone at the firm, including the lawyers, the ethical right to discuss the information online or use it for a self-serving marketing purpose. (Yes this topic is referenced AGAIN because it is so important)
  • Establish firm policies about endorsing/recommending clients online and accepting such endorsements/recommendations from clients.

Try this reality test for your firm’s public image:  “Google” your firm name and see what results appear for social media sites, discussion boards, and blogs.  Now read those posts – as a client or judge would read them if they “Googled” your firm.  Remind all lawyers and staff that if they use the firm name in any online activity, the firm may be held responsible for the activity/content.

Professionalism Generates Business

The Rules of Professional Conduct pertaining to advertising and marketing do not regulate “taste” – the Rules only govern false or misleading communications about a lawyer’s services.  “Good taste” is more of a professionalism concept.  For instance, the Ethical Rules would not prohibit an accurate television ad that showed a fatal car accident scene that a lawyer handled as a wrongful death case.  Good taste, however, would suggest that the lawyer most likely will alienate more people than attract new clients by showing a bloody scene.

Law firms are responsible for their marketing efforts.  Whether the firm hires an individual or a company to assist with “SEO,” print ads, commercials, or joining organizations to enhance marketing, the lawyers of the firm are responsible for assuring that everyone who helps with the firm’s marketing understands both the Ethical Rule requirements as well as the firm’s goal for a professional image.

Treating opposing lawyers with courtesy and respect frequently generates referrals when the opposing counsel cannot take a case.  Treating clients with empathy and integrity will motivate clients to tell their colleagues, friends and family about the firm.  With social media providing an instantaneous forum to either compliment or complain about a lawyer, all lawyers should be mindful of the impression they make.

Some ethics commentators/professors explain professionalism as the Golden Rule or “would your mother be proud of your conduct if she read it in the newspaper?”   Even more basic, are you proud of the way you treat others?   Set the example of practicing with integrity for all lawyers and staff in your firm

Professionalism in Communication Skills

Ethical Rule 1.4 requires that lawyers and law firms communicate certain information to clients in a timely manner:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in ER 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

In addition to the requirements to respond to all emails and telephone calls within 24 hours, law firms must respond politely and professionally – no matter what.

All telephone calls and emails should be acknowledged, professionally, within 24 hours.

  1. Professionalism When Changing Firms
  1. Duties of Firms and Lawyers When someone Leaves

Lawyers rarely stay with the same law firm their entire careers.  When lawyers leave a firm, there are certain ethical obligations, client relations issues, and other duties that arise.  This article will only address the ethical and professional considerations when lawyers change firms and not any tort, contract, or employment law issues.

From an ethics perspective, the goal is that lawyers changing firms – and their former and future firms – all behave like grown-ups.  Really.  Law firm changes may feel personal but as professionals, lawyers must nevertheless abide by their ethical obligations when transitioning firms.

In addition to ethical obligations to the firm and clients, departing lawyers also may be subject to both civil and criminal charges for theft of firm property, misuse of firm assets, misrepresentations, and interfering with contracts a firm has with clients.  See, e.g, Florida Bar v. Winters & Yonkers (Sept., 2012)(two lawyers suspended from the practice of law for copying firm files, which constituted theft and made misrepresentations to the firm and clients to divert clients away from firm).

A departing lawyer should always tell her firm partners, first, before telling clients, staff, or others that she is leaving a firm.  The recent amendments to the ABA Model Rules on Professional Conduct, ER 1.6 specifically note that lawyer may have fiduciary duties to their current firms.

If lawyers read nothing else, read these essential ethics opinions regarding lawyer transitions:

Ariz. Op. 99-14

ABA Op. 99-414

Ariz. Op. 10-02

Ethical Obligation to Communicate to Certain Clients

Two primary directives must be remembered when lawyers leave law firms: 1) lawyers have a duty to tell “their” (not all clients of the firm) clients that they are leaving; and 2) clients are not chattels – the firm and departing lawyer cannot decide which clients can stay and which can go – the clients decide.  Lawyers must keep clients informed so that clients may make informed decisions about what the clients want to do.  However, lawyers who are leaving need to tell the firm, first, and then communicate with clients.

Arizona Opinion 10-02 summarizes the requirements that departing lawyers and law firms have an ethical obligation to cooperate with each other and share information on client matters to avoid any prejudice or harm to clients when a lawyer leaves the firm.  This means that departing attorneys who are not taking clients with them have an obligation to assure that the files on which they worked are in proper order and contain all necessary information (not to mention departing lawyers need to provide the firm with their time).

In addition to the ethical obligations departing lawyers have, they also must avoid interfering with the contracts the firm has with existing clients.  See ,e.g., Raymond H. Wong Inc. v. Xue, No. 115269/04 (N.Y. Sup. Ct. N.Y. Cty. 1/21/05)(associate enjoined from attempting to lure away firm clients); Reeves v. Hanlon, 33 Cal.4th 1140,  No. S114811, (Cal. 8/12/04)(departed lawyers liable for damages to firm for luring away clients and associates). Business tort litigation against departed lawyers is a growing practice area.  However, the caution to avoid stealing clients must be balanced against the departing lawyer’s ethical obligation to notify clients that an attorney is departing.

As explained in ABA Formal Opinion 99-414, “The departing lawyer and responsible members of the law firm who remain have an ethical obligation to assure that prompt notice is given to clients on whose active matters she currently is working.”

Remember, Ethical Rule 1.4 requires that lawyers keep clients reasonably informed – which would include notifying those clients with whom the departing lawyer  has had “significant contact” that their lawyer is  leaving the firm.

Which clients to tell

Arizona Opinion 99-14 provides some guidance on when a departing lawyer may communicate directly with certain firm clients.  A departing lawyer who has had “significant personal contacts” with the client, should inform the client that the lawyer is leaving the firm.  Note: this does not mean that an associate who met a client once or twice and has prepared discovery requests has had “significant personal contacts” – the standard is that if the client were asked “which lawyer(s) at the firm represent you?” the lawyers mentioned would be those that have had “significant personal contacts.”

How to tell clients

Again – departing lawyers need to inform firm management about their anticipated departure before the lawyers start contacting clients.  Section 9(3) of the Restatement of the Law Governing Lawyers (2000) provides:

“Absent an agreement with the firm providing a more permissive rule, a lawyer leaving a law firm may solicit firm clients:

(a) prior to leaving the firm: (i) only with respect to firm clients on whose matters the lawyer is actively and substantially working; and

(ii) only after the lawyer has adequately and timely informed the firm of the lawyer’s intent to contact firm clients for that purpose; and

(b) after ceasing employment in the firm, to the same extent as any other nonfirm lawyer.”

The preferred method of advising firm clients about the impending departure of an attorney is a joint letter from the firm and departing lawyer to all clients with whom the lawyer had significant personal contacts.  Such a letter should advise the clients:

  • When the lawyer is leaving and where they are going
  • The client has the option of going with the lawyer, staying with the firm, or getting a new firm
  • How any advance fee deposit will be treated
  • A place for the client to sign and return the letter, with instructions on where their file should go.

This letter preferably should be sent prior to the lawyer’s departure and should be calendared to assure that written responses are received from all clients to confirm how each file should be handled.  The letter needs to tell clients where the departing lawyer is going so that clients may check for conflicts before agreeing to a change.  For those clients that want their files sent with the departing lawyer, the firm should review their malpractice policy for requirements on maintaining a copy of certain parts of the file for a period of time – that copying of course is at the firm’s expense because the client file is client property that belongs to the client.  ER 1.16(d).

Note that if a joint letter is not sent, separate letters may be sent by the lawyer (or the firm) to clients with whom the departing lawyer had significant personal contact as long as: 1) the letters do not disparage the firm or the departing lawyer; and 2) the letters do not involve improper solicitation in violation of ER 7.3.  Lawyers that have had an attorney/client relationship may communicate directly with those clients – that does not violate ER 7.3.

Yes, a joint email may be sent to clients with a request that the clients respond, within a certain time, to direct who they want as their lawyer.