Don’t Become Part of the Fray

Among the many benefits of ABA membership are the opportunities to meet and form connections of fellowship with attorneys from all across the nation. I find attorneys tend to be intelligent, well-read, and (largely because of these attributes) great conversationalists. I’ve also observed that we are unabashedly passionate and competitive. It’s the very nature of what we do. We are legally trained and ethically obligated to zealously represent our clients’ interests.

It’s not surprising that many attorneys bring the same zealous passion to their personal interests, beliefs, and causes. In the current sociopolitical climate, however, it’s important for attorneys to monitor their passions lest they become part of the fray. The consequences can be career-ending.

Don’t Let Your Passion Be Your Downfall or Your Firm’s Downfall

Each of us must follow the dictates of our conscience. We share First Amendment rights just like everyone else. We have as much right as anyone else to debate ad nauseam issues from the folly of wearing or not wearing masks to what rights the 14th Amendment does or does not protect, and all in between. I am offering a reminder that we hold a special role, and civility is expected of us at all times.

We have worked hard for our licenses. This consideration in and of itself should be sufficient to make us conform our behavior to acceptable levels, but, unfortunately, some have fallen short of this goal.

The theme for this issue is “Protest or Riot: An Overview of Accountability.” Within these pages, we discuss the often breached line between protest and riot. This is an important discussion the nation needs to have. At a certain level, it’s a discussion we must have within our profession. To clarify, I don’t think we need to discuss among our members the consequences of engaging in riotous behavior, but a conversation regarding the line between zealous advocacy/representation and misconduct is warranted.

With increasing frequency, we hear reports of lawyers who have let their passions and prejudices negatively impact their law practices. Each report of abhorrent behavior inflicts a blow to our profession and the system of justice. With this in mind, I offer rather simple advice that may help the overzealous advocate maintain his or her license.

Rule 1: If You Are Not Behaving Civilly, You Are Misbehaving—There Is No Gray Area

The Preamble to the American Bar Association (ABA) Model Rules of Professional Conduct provides, “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. . . . Lawyers play a vital role in the preservation of society.”

In May 2023, a Wisconsin attorney was sentenced to 60 days in jail for spitting at a teenager participating in a march. In June 2020, two New York lawyers were arrested after throwing Molotov cocktails at police cars in reaction to the murder of George Floyd. And most of us are familiar with the story of the two St. Louis lawyers who, in June 2020, brazenly pointed guns at participants in an otherwise peaceful protest.

These are extreme cases, but I mention them to underscore the outcome and dangers of unrestrained passion. Importantly, conduct does not have to rise to this level to garner the unwanted attention of the lawyer disciplinary commission.

Rule 2: When You Make a Factual Representation, Make Sure It Is Factual

ABA Model Rule 3.1 provides, in part, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

The Comment to ABA Model Rule 3.1 states that an action is frivolous “if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”

Recently, numerous lawyers—most notably Rudy Giuliani—have been disciplined and criminally charged for promoting unsubstantiated claims of election fraud and making false claims of election success. In 2021, Steven Donziger, the famed environmental and human rights lawyer, was disbarred and criminally charged amid allegations he both fabricated and withheld material evidence.

No matter how well-intentioned you are or how worthy your cause, don’t let your passion cloud your judgment as to whether a claim or assertion has appropriate support in law or fact. Perform due diligence. When in doubt, seek input from a less-interested attorney.

Rule 3: It Is Almost Never a Good Idea to Attack the Qualifications or Integrity of a Judge

ABA Model Rule 8.2(a) provides: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

In my humble opinion, the weight assigned to certain evidence, the application of the law, and the logic and cohesiveness of the conclusions drawn in a decision are open for reasoned debate, but criticism of a judge through ad hominem attacks is detrimental to the administration of justice and could be disastrous for your career.

Rule 4: Racist, Sexist, and Homophobic Language Is Never Appropriate

Once again, there is no gray area. In fact, you could do yourself, the profession, and society a huge favor if you would just delete racist, sexist, and homophobic language from your vocabulary.

ABA Model Rule 8.4 provides it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice [. . . or] engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

The Comment to Rule 8.4 explains that discrimination and harassment by lawyers “undermine[s] confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”

Last year, Louisiana Judge Michelle Odinet was terminated after audio of her racist rantings was caught on video. She could be heard using the n-word. In 2021, Alabama Judge Randy Jinks was terminated for failing to uphold the integrity and independence of the court system. Among other items, he is alleged to have said that George Floyd, a murder victim, “got what he deserved.”

These rules represent the bare minimum. We are lawyers. Let’s be impactful. Let’s follow our passions and zealously represent our clients, but let us never lose sight that we are proud members of an honored profession, and win or lose, we are obligated to uphold its finest traditions.