Do’s and Don’ts of Professionalism

Opposing-CounselHats off to our Ohio counterpart, the Supreme Court of Ohio Commission on Professionalism, for its series of professionalism best practices!  The Ohio Commission on Professionalism released the third in a series of Professionalism Do’s and Don’ts laying out practical guidelines on attorney conduct.  The Working with Opposing Counsel and Other Lawyers guidelines contain a list of specific behaviors that lawyers should adopt or avoid.  My friend and the Commission Secretary Lori Keating explained that Ohio lawyers “pledge to offer fairness, integrity, and civility to opposing parties and their counsel under A Lawyer’s Creed which was issued by the Ohio Supreme Court in 1997…and the Dos and Don’ts list demonstrates ways attorneys can honor this oath in their [daily] practice.”

The list of do-behaviors is reflective of many of the civility principles we promote in our writings and CLE programs, especially those directed to new attorneys.  The tips include:  avoid motions about minor issues that should be worked out informally; wait 24 hours before deciding to respond to an intemperate, untrue, or exasperating communication from another attorney; extend professional courtesies regarding procedural formalities and scheduling when your client will not suffer prejudice; and identify the changes you made from previous drafts when exchanging document drafts.  None of these behaviors are specifically prescribed by the Rules of Professional Conduct.

Likewise, the don’t tips are not explicitly proscribed by the Rules.  Some of those exhort lawyers to: not respond in kind when confronted with unprofessional behavior by another attorney; serve papers at a time or in a manner intended to inconvenience or take advantage of opposing counsel; use discovery as a means of harassment; or publicly disparage another attorney.

Like the Illinois Commission, the goal of the Ohio Commission on Professionalism is to inspire and promote higher standards of professionalism among lawyers.   The standards the Ohio Commission issued are not to regulate or provide additional bases for discipline.  It used to be that inspiration for professional behavior was contained in the same model document as the attorney disciplinary rules.

In fact, some professionalism writers posit that the lawyer incivility problem began when the ABA Model Code of Professional Responsibility was revised in favor of the Rules of Professional Conduct.  Most states adopted the Code and have adopted the Rules, with slight variations state to state.  The thing is, the Code contained, alongside each disciplinary rule, a statement of ethical considerations that were aspirational in character and represented the objectives toward which every member of the bar should strive.  (Those of us of a certain age will remember those DRs and ECs.).  The disciplinary rules, under both versions, state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.

Without a reminder of the ethical considerations, or aspirations of professionalism, most of us have a tendency to think that compliance with the Rules of Conduct is all we need to do.  After all, we hone our analytical skills by cutting as close as possible to statutory boundaries.  However, I think we all would agree that avoiding prosecution by the disciplinary authorities does not a paragon of professionalism make.

So, the Ohio Professionalism Do’s and Don’ts  series is one way of promoting behavior that manifests civility and integrity above the disciplinary floor of acceptable.  Thanks for sharing, Lori.  Any other ideas out there?

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