May 01, 2018

Putting Some Teeth into Professionalism Principles: One Bar Association’s Odyssey

By Marvin L. Karp

Commencing in the 1970s, lawyers engaged in litigation began to experience a troubling new phenomenon: More and more of their adversaries were employing a “hardball” approach to their practice. For those lawyers, deliberate rudeness had become their operating norm; requests for reasonable accommodations in scheduling were rejected out of hand or acceded to only grudgingly; opposing parties and witnesses were verbally abused; and ad hominem attacks on the character, competence, and integrity of opposing counsel were now regular attributes of their briefs and motions.

This virulent strategy was particularly manifest during depositions. Whereas depositions generally had been conducted in a relatively courteous and straightforward manner—the thinking being that this would cause deponents to be more open and voluble in their responses to questions—depositions now involved an atmosphere of bellicosity and, at times, outright nastiness, the obvious intention being to unsettle and intimidate the deponent.

In short, whether because there were now too many lawyers, too much competition, or too little understanding of the true meaning of our adversary system, a “Rambo” mentality had begun to infect many members of the legal profession. For such lawyers, litigation had become synonymous with all-out war, to be won at any cost. And if, in the process, they could destroy the other side and humiliate the opposing lawyer, so much the better. Why? “Because,” we were told, “this is what clients want, a lawyer who is mean and tough. So, either you play ‘hardball’ or you won’t be able to play at all.”

Such tactics understandably evoked retaliation in the same mean spirit. As a consequence, there was a growing escalation in both the financial and emotional costs of litigation, not to mention the creation and hardening of animosities between opposing counsel that made an early, let alone amicable, resolution of the underlying dispute increasingly difficult.

The Adoption of “Creeds of Professionalism”

In the hope of, in some way, arresting—or at least ameliorating—this trend, an ad hoc committee of the Cleveland Bar Association (CBA) drafted, in 1987, what came to be called “A Lawyer’s Creed of Professionalism.” It consisted of a list of very specific “dos and don’ts” that would serve as a primer as to how lawyers should conduct themselves in their everyday dealings with opposing counsel, with judges, and, indeed, with the lawyers’ own clients.

The Creed stressed the importance of courtesy and civility between lawyers; of cooperating in scheduling; of refraining from utilizing litigation to harass the opposing party; of not filing frivolous motions and pleadings; of stipulating to facts as to which there was no genuine dispute; of being punctual; and of recognizing that excessive zeal can be detrimental to the interests of the lawyer’s clients and to the proper functioning of our system of justice.

The Creed further took note of the fact that the spread of nonprofessional conduct was being impelled by clients. Because of what they read in newspapers or magazines or saw on television, many clients had come to believe that the ideal lawyer was one who was nasty, uncompromising, and notorious for making life miserable for the other side. The Creed therefore pointed out that a lawyer has certain professional responsibilities that transcend the lawyer’s duties to his or her clients. While a lawyer always must be loyal and committed to his or her client’s cause, a lawyer also has an obligation to counsel a client against pursuing a course of action that is of dubious merit and from insisting on tactics that are intended to delay, harass, or drain the financial resources of the other side.

In 1988, the “Lawyer’s Creed of Professionalism” was formally adopted by the CBA’s Board of Trustees. The board further authorized the printing of 6,000 copies on decorated paper, 16 × 20 inches in size. Those printed copies were then mailed to all lawyers and judges in Cuyahoga County, Ohio (where Cleveland is located), along with a cover letter urging each recipient to frame the enclosed Creed and hang it on an office wall where it would serve as a daily reminder to the lawyer—as well as to the clients who came to that office—of the professionalism standards that the lawyer intended to abide by in his or her day-to-day practice.

Also in 1988, and at the urging of the American Bar Association (ABA) Torts and Insurance Practice Section (TIPS), the ABA House of Delegates adopted a recommendation that other state and local bar associations do what the CBA had done. This recommendation was subsequently implemented by TIPS, which proceeded to mail, to approximately 250 state and local bar associations around the country, copies of the CBA “Lawyer’s Creed of Professionalism” as a model of what was being proposed. Quite a number of these associations took that recommendation to heart, adopting the “Lawyer’s Creed of Professionalism” as their own and sending out printed copies to their members. In addition—thanks in large measure to a laudatory article that appeared in The New York Times—the CBA received requests for copies from a number of judges and lawyers in other states.1

Subsequent Actions in Ohio as a Consequence of the 1988 Creed

The CBA committee that developed the 1988 Creed was troubled by the fact that it was not accompanied by an “enforcement” mechanism that could be invoked against recalcitrant lawyers who ignored the Creed’s various precepts, thereby souring other lawyers on the value of complying. Was there some way, they asked, in which the Creed could be given some “teeth,” without causing confusion with existing ethics rules and grievance procedures?

In early 1989, the CBA came up with a suggestion: It asked the Ohio Supreme Court to authorize local bar associations (such as the CBA) to establish standing committees on professionalism that could monitor compliance with any creed of professionalism adopted by that association, receive complaints about the failure of individual lawyers to abide by such creeds, and endeavor (through informal discussion) to persuade those lawyers to rectify their conduct. When another metropolitan bar association objected to the CBA’s proposal, Ohio Supreme Court Chief Justice Thomas Moyer appointed a committee—composed of three judges and 14 lawyers (including the presidents of each of the Ohio metropolitan bar associations)—to study the issue and then provide the supreme court with the “most comprehensive recommendations the Committee may develop,” including the “enforcement, monitoring and implementation of Creeds of Professionalism.”

During the next year and a half, the committee held seven all-day meetings and conducted three separate surveys. In December 1990, the committee issued its report. That report contained several recommendations, the first of which was that the supreme court should establish a “permanent Professionalism Commission,” whose first order of business would be to “draft a comprehensive creed of professionalism to set forth standards of professional conduct to which all members of the Ohio Bar should aspire.” Such a Creed would “focus the consciousness of Ohio lawyers on professionalism concerns” and also “serve as an educational tool for law schools to teach professionalism concepts to law students for the continuing education of the Ohio Bar.” Another recommendation was that the Ohio Rules for the Government of the Bar should be amended so as to include professionalism education within Ohio’s continuing legal education requirements.

Once again, however, coming up with a procedure that would engender compliance with such a creed—in other words, “putting some teeth” into it—proved troublesome. The committee’s report therefore stated that any aspirational creed “should not, at this time, be accompanied by a formal enforcement mechanism or sanctions for violative conduct.” Instead, consideration of such a mechanism should be deferred until “after an evaluation is performed of the success of the creed in reducing unprofessional conduct.” On the other hand, the committee did point out that “peer review committees, established on a local or regional basis, could monitor unprofessional conduct and encourage attorneys to comply with aspirational standards of a creed of professionalism and accepted local practices. [Such] committees would not have enforcement powers, but would be authorized to speak to an individual attorney who had been identified as engaging in violative conduct.”

Several of the committee’s recommendations were subsequently implemented. For example, in 1992, the supreme court created a permanent Commission on Professionalism, consisting of five judges, six attorneys, two law school representatives, and two lay members. Thereafter, that commission drafted a “Statement on Professionalism,” which was formally adopted by the supreme court in 1997. Several of the provisions in that “Statement on Professionalism” (particularly those found in the section entitled “Lawyer’s Aspirational Ideals”) are very similar to elements of the “Lawyer’s Creed of Professionalism” adopted by the Cleveland Bar Association in 1988. Also in 1997, the supreme court amended its Rules for the Government of the Bar so as to require every Ohio lawyer to receive “sixty minutes of instruction related to professionalism” every two years.

The Experience of Local Bar Associations in the Ensuing Years

By 1997, implementation of the CBA’s “Lawyer’s Creed” had largely run its course. The CBA continued to distribute copies of the printed Creed to all new bar admittees each year, and framed copies of the Creed still could be seen on the office walls of many Cleveland lawyers and in the chambers of many local judges, who often would point out certain provisions thereof to feuding lawyers appearing before them. Nevertheless, over time, the number of framed Creeds gradually abated. Indeed, the establishment of the Commission on Professionalism and its promulgation of the “Statement of Professionalism” in 1997 may have caused many local bar associations to believe that any further initiatives with respect to professionalism were now the responsibility of the commission, not of local bars.

The 2012 Initiative

Then, in 2012, a new president of the Cleveland Metropolitan Bar Association (CMBA), the successor to the CBA (which had merged with the former Cuyahoga County Bar Association) appointed a task force to review and update the 1988 “Lawyer’s Creed.”

Given the technological innovations and other changes in the practice of law that had occurred during the intervening 25 years, the task force quickly decided to redo that document, adding new provisions and clarifying and expanding certain of the original principles. For example, where the 1988 Creed simply stated that, “in depositions and other proceedings, and in negotiations,” a lawyer would conduct himself “with dignity, avoid making groundless objections and refrain from engaging in acts of rudeness or disrespect,” the revised version stated:

9. At depositions:

a. I will not be rude or abusive when asking questions of a deponent;

b. I will not interfere with the questioning of witnesses by other counsel by, for example, making “speaking objections” or rude comments or by coaching or giving improper instructions to witnesses; and

c. I will not engage in any conduct that would be inappropriate in the presence of a judge.

10. When propounding written discovery, I will be concise in my instructions and I will prepare interrogatories and requests for production that are focused and unambiguous.

The revised Creed was then submitted to, and approved by, the CMBA’s Board of Trustees in November 2013.

In addition, the task force took another stab at the “teeth” problem that had troubled advocates of creeds of professionalism from the outset. Specifically, the task force recommended that the CMBA Board should establish a “semi-enforcement” procedure along the lines of what the CBA had proposed to the Ohio Supreme Court back in 1989 (and that was suggested as a possible option by the supreme court’s committee in its December 1990 report described above), namely, a “peer conciliation panel.”

The CMBA Board accepted this recommendation and authorized the task force to prepare a document that would set forth in detail the structure and operating procedures of such a panel. The resulting document—styled “The Purpose, Composition and Procedures of the Cleveland Metropolitan Bar Association Professional Conciliation Panel”—was modeled in some ways after a program that had been in effect in Colorado for several years. The document stated that the Conciliation Panel would consist of nine members (all of whom would be experienced members of the bar who had a reputation for “integrity and professionalism”), appointed by the president of the CMBA. The document then described how any lawyer or judge in Cuyahoga County who believed that the conduct of a lawyer was inconsistent with the principles of professionalism set forth in the CMBA “Lawyer’s Creed” or in the Ohio Supreme Court’s 2007 Statement on Professionalism could so notify the Bar Counsel of the CMBA. If Bar Counsel then determined that the matter fell within the purview of the panel, Bar Counsel would put in a call to one of the panel members.

The panel member, in turn, would contact the initial caller (to obtain more information) and contact the lawyer who was the subject of the initial call. At that point, the panel member would use his or her best judgment on how to proceed—for example, conducting separate or joint conferences or meetings with one or both of the lawyers involved—in order to rectify the situation. The same procedures would be used if a judge informed Bar Counsel that one or more lawyers in a case before the judge couldn’t seem to agree on procedural matters and that those lawyers—and the progress of the underlying litigation—might therefore benefit if those lawyers sat down with a panel member to discuss their conduct.

The document further pointed out that the conciliation procedure was confidential and entirely voluntary. It also stressed that the primary purpose of the procedure was to improve the atmosphere in which lawyers were interacting with each other and should not be deemed to be an alternative forum for resolving the underlying legal dispute.

This foundational document was approved by the CMBA Board of Trustees in 2014. Thereafter, the president of the CMBA appointed nine conciliation panel members to staggered terms. Subsequently, the CMBA, through its various publications and in its regular email communications, has given the panel repeated and extensive publicity. In addition, panel members have communicated with various judges in Cuyahoga County in order to make them aware that, when a judge finds that progress in a case is being obstructed because the contending lawyers are unable to cooperate, the judge can call on the panel for assistance.

The hope, in short, is that the existence of the Professionalism Conciliation Panel, at long last, will “put some kind of teeth” into established standards of professionalism and help defuse unprofessional conduct by lawyers that negates those standards. 

Endnote

1. The CBA/TIPS Creed, as well as versions subsequently adopted by other state and local bar associations, was specifically mentioned in the April 1991 Interim Report of the Seventh Circuit’s Committee on Civility. See 143 F.R.D. 371, at 422.