June 02, 2020

Guidelines for Conduct

The widely-perceived, accelerating decline in professionalism - often denominated "civility" - has been the subject of increasingconcern to the profession for many years. Twice since 1988, the American BarAssociation has urged adoption of, and adherence to, civility codes. What hasbeen lacking, however, is an ABA-endorsed model code. The Guidelines for LitigationConduct fill that void

These Guidelines are consensus-driven and state nothing novel or revolutionary. They are purely aspirational and are not to be usedas a basis for litigation, liability, discipline, sanctions or penalties of anytype. The Guidelines are designed not to promote punishment but rather to elevatethe tenor of practice - to set a voluntary, higher standard, "in the hope that," in the words of former ABA President JohnJ. Curtin, "some progress might be made towards greater professional satisfaction."

The Guidelines for Litigation Conduct are modeled on the Standards forProfessional Conduct adopted by the United States Court of Appeals for the SeventhCircuit, a set of proven aspirational standards. Chief United States DistrictJudge Marvin E. Aspen of Chicago, architect of the Seventh Circuit Standards,has accurately observed that civility in the legal profession is inextricablylinked to the manner in which lawyers are perceived by the public - and, therefore,to the deteriorating public confidence that our system of justice enjoys.

Deteriorating civility, in former ABA President Lee Cooper's words, "interrupts the administration of justice. It makes the practice of law less rewarding. It robs a lawyer of the sense of dignity and self-worth that should come from a learned profession. Not least of all, it ... brings with it all the problems ... that accompany low public regard for lawyers and lack of confidence in the justice system."

The problem of incivility is more pervasive, and insidious, than itsimpact on the legal profession alone. As Justice Anthony M. Kennedy has stressed:

Civility is the mark of an accomplished and superb professional, but it is more even than this. It is an end in itself. Civility has deep roots in the idea of respect for the individual.

The decline in civility is not limited to the legal profession, but this profession has been in the forefront of those addressing this problem. These Guidelines are offered in this spirit.

Gregory P. Joseph
Chair, 1997-1998
Section of Litigation
American Bar Association