March 01, 2014

Professionalism vs. Ethics?

Thomas E. Spahn

Some lawyers loosely use the term “professionalism” to mean two very different concepts: ethics and civility. Those of us who decry the decreasing civility among lawyers should understand the distinction.

The ethics rules balance our primary duty to our clients and our duties to others (including adversaries, third parties, courts, etc.). In some situations, the ethics rules allow, and may even require, us to engage in what some would see as “unprofessional” behavior. For instance, unless her client consents, a lawyer almost surely cannot point out an adversary’s miscalculation about some important appellate deadline, even if the adversary’s lawyer is a longtime friend. The lawyer usually must serve her client by remaining silent, even if the other lawyer stumbles into malpractice. The same would generally be true of some important witness the adversary’s lawyer has overlooked, an argument he missed, etc. While we should accommodate another lawyer’s reasonable requests for rescheduling depositions, etc., we must never lose sight of our primary role as our clients’ champion.

Thus, the ethics rules focus on duties rather than on civil behavior. Although some courts have adopted mandatory civility codes, the ABA Model Rules punish unprofessional conduct only at the extremes. For instance, ABA Model Rule 4.4(a) prohibits lawyers from using means that “have no substantial purpose other than to embarrass, delay, or burden a third person.” The ABA Model Rules Preamble [5] explains that lawyers “should” use procedures “only for legitimate purposes and not to harass or intimidate others.” Those are very low standards, and highlight the ethics rules’ deliberate silence about civility and courtesy.

In contrast to ethics, professionalism focuses on how we treat others in our daily interactions. It rests on the famous Golden Rule, guiding the style rather than the substance of our professional actions. As the saying goes, ethical and professional lawyers can disagree without being disagreeable.

But do courteous lawyers run the risk of violating the ethics rules by falling short of their duty to diligently represent their clients? Fortunately, the ethics rules contain several “safe harbors” that many lawyers overlook. These allow lawyers to act professionally and ethically at the same time.

First, lawyers establishing an attorney-client relationship can limit the scope of the representation so it “exclude[s] specific means that might otherwise be used to accomplish the client’s objectives,” such as “actions . . . that the lawyer regards as repugnant or imprudent” (lawyers can either make their services available only under this condition, or agree with the client to such a limit). ABA Model Rule 1.2 cmt. [6].

Second, during the course of the representation, clients generally set the objectives but “normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.” ABA Model Rule 1.2 cmt. [2]. Thus, lawyers “may have authority to exercise professional discretion in determining the means by which a matter should be pursued.” ABA Model Rule 1.3 cmt. [1].

Third, although lawyers must diligently represent their clients, “[a] lawyer is not bound . . . to press for every advantage that might be realized for a client.” ABA Model Rule 1.3 cmt. [1].

Fourth, although a lawyer “shall act with reasonable diligence and promptness in representing a client,” “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” ABA Model Rule 1.3 & cmt. [1] (emphasis added).

Fifth, a lawyer may withdraw from representing a client (even if there is “material adverse effect on the interests of the client”) if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” ABA Model Rule 1.16(b)(1), (4) (emphasis added).

In addition to these important “safe harbors,” the ethics rules contain several statements of lawyers’ affirmative right to act in a way that our professional instinct tells us should be acceptable.

First, lawyers are free to provide these clients legal advice without being asked for it. “[A] lawyer is not expected to give advice until asked by the client,” but a lawyer “may initiate advice to a client when doing so appears to be in the client’s interest.” ABA Model Rule 2.1 cmt. [5].

Second, lawyers can give advice even if they know the clients will not like that advice. Thus, “a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” ABA Model Rule 2.1 cmt. [1].

Third, lawyers can provide their clients moral as well as legal advice. The ABA Model Rules indicate that “[i]t is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.” ABA Model Rule 2.1 cmt. [2].

Although perhaps not as important as the “safe harbors,” these provisions should embolden lawyers to be the sort of “trusted advisors” that many clients need—even if the clients do not recognize their need.

Most lawyers want to act professionally. Even in states where ethics rules do not punish incivility, lawyers can rely on some ethics rules provisions in serving their clients while courteously interacting with everyone around them. And at the least, these ethics provisions take away any excuses that a “scorched earth” lawyer might be tempted to use.

Thomas E. Spahn

Thomas E. Spahn is a commercial litigation partner in the Tysons Corner, Virginia, office of McGuireWoods LLP. He recently served on the ABA Standing Committee on Ethics and Professional Responsibility.