Professionalism guidelines for the ethical lawyer

Most lawyers use the words "professional" and "ethical" as synonyms for some vaguely defined "good" lawyer behavior. However, the concepts are really quite different, and lawyers hoping to act "professionally" sometimes must examine the ethics rules for permission to do so.

As a matter of ethics, as well as fiduciary and other principles, lawyers must primarily serve their clients. Every ethics rule points in that direction, although the rules obviously prohibit illegal conduct, deceptive practices, etc.

Lawyers will look in vain for any ethics rules requiring them to be courteous or nice. For instance, the ABA Model Rules set a shockingly low standard for lawyer civility, prohibiting only those actions "that have no substantial purpose other than to embarrass, delay or burden a third person." (ABA Model Rule 4.4(a).) Few lawyers fall below that standard.

Most lawyers aspire to act "professionally." Professionalism involves our daily interaction with others. Professional lawyers are courteous, and treat folks as they would like to be treated.

But the ethics rules do not require this, and in some circumstances would instead seem to require conduct that laymen (and even some lawyers) would consider "unprofessional." For instance, a lawyer might consider it "professional" to alert an opponent that she is about to miss an important deadline, has overlooked a significant argument or witness, etc. Yet the ethics rules normally prohibit lawyers from assisting their client's adversary in this way.

Despite this, lawyers seeking to act professionally can rely on various portions of the ethics rules that essentially offer "safe harbors" for attorneys to act with courtesy and civility, without falling short of their primary duty to diligently serve their clients.

For example, lawyers establishing an attorney-client relationship can limit the scope of the representation, so that it explicitly excludes actions "that the lawyer regards as repugnant or imprudent." (ABA Model Rule 1.2 cmt. 6. )

Further, although lawyers must defer to a client's determination of the representation's objectives, the ethics rules indicate that clients "normally defer" to lawyers on "means to be used to accomplish their objectives." (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.) This essentially allows lawyers to act with civility while pursuing the client's objectives.

Other rules can assist as well. Lawyers are "not bound ... to press for every advantage that might be realized for a client," (ABA Model Rule 1.3 cmt. 1), and the 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.) Finally, a lawyer may withdraw from a representation 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)(4).)

These "safe harbors" allow lawyers to act professionally while fulfilling their main ethical duty of diligent representation.

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Tom Spahn practices at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations.

Published: Tue, Jan 24, 2012

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