January 19, 2016 Articles

"Maelstrom of Misconduct" Generates Bevy of Bench Slaps

Incivility among attorneys may lead to discipline.

By Kathryn Nadro

A recent spate of opinions from multiple jurisdictions has underscored the growing importance disciplinary boards appear to place on professionalism and civility among members of the bar. An increasing number of attorneys are facing disciplinary charges for a failure to adhere to professionalism standards, which for many years may have been considered more aspirational than mandatory. While prescient authors (see, e.g., Gregory Hanthorn, “When Breaches of Professionalism Become Sanctionable,” Ethics & Professionalism, Feb. 5, 2014) have noted this trend over the past several years, reports of breaches of professional conduct appear to grow daily and serve as a warning to attorneys who appear to confuse incivility and outright rudeness with zealous advocacy in service to their clients.

Despite the multiple, specific rules that deal with ethical breaches, the ABA Model Rules of Professional Conduct do not directly address an attorney’s obligation of professionalism. However, an attorney’s duty of professionalism is implied in multiple places within the Model Rules. Model Rule 8.4(d) is invoked most frequently when discussing an attorney’s duty of civility and professionalism, in its mandate to avoid “conduct prejudicial to the administration of justice.” Other Model Rules that touch on civility requirements include the prohibition against attorneys making false or misleading statements about judges and candidates for public office (Model Rule 8.2(a)) and the obligation to avoid litigation tactics that harass or cause undue burden toward third parties (Model Rule 4.4(a)). Notably, even the preamble to the ABA Model Rules simultaneously requires attorneys to practice “zealous advocacy” and to maintain a "professional, courteous, and civil attitude toward all persons involved in the legal system.”

Premium Content For:
  • Litigation Section
Join - Now