Lawyers can provide competent & diligent representation without being jerks.
Last week, I posted The 50 Original Rules. It’s a post that briefly recaps the history of the conduct rules that apply to lawyers. Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment. My post includes each of Hoffman’s 50 resolutions.
181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate. Many are embedded in the rules and our collective professional conscience. Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.
I don’t know how long it’ll take me to get through all 50. No matter, if even one of the resolutions resonates with but one of you, this endeavor will have been a success.
Here are my thoughts on Resolution #1.
Summary: don’t be a jerk.
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Fifty Resolutions in Regard to Professional Deportment
DAVID C. HOFFMAN (1836)
1. I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”
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Hoffman’s initial resolution not to “permit professional zeal to carry me beyond the limits of sobriety and decorum” remains a crucial concept. Indeed, the notion that a lawyer’s duties to adversaries, the courts, and the profession limit the exercise of the lawyer’s duties to the client runs throughout the rules.
Zeal does not trump decorum.
Here is Section 1 Preamble to the Rules of Professional Conduct:
“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”
Section 2 states that “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”
Section 9 of the Preamble recognizes that the basic principles of the rules “include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”
As did Hoffman, the Preamble to the rules contemplates that lawyers as more than mere zealots for their clients. Rather, there is a higher duty to the system, the manner in which it operates, and the manner in which lawyers operate within it.
This idea is reflected in the rules as well. For example, Rule 1.3 requires lawyers to act with reasonable diligence. The final sentence to Comment [1] states that “[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 with courtesy and respect.”
Rule 3.5(d) mandates decorum before a tribunal. I cited to Comment [4] in a disciplinary case in which I prosecuted a lawyer whose zeal exceeded the bounds of decorum:
“Comment [4] The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve integrity by patient firmness no less effectively than by belligerence or theatrics.”
Let me say it again: a lawyer can advocate for the client “by patient firmness no less effectively than by belligerence of theatrics.”
Finally, maintaining decorum at the expense of zealotry is not a concept limited to the rules. It’s a decision we’ve made as a profession.
In 1989, the Vermont Bar Association adopted Guidelines for Professional Courtesy. I encourage you to read them. Most, if not all, are rooted in today’s topic. The last is my favorite:
- “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”
In other words, effective advocacy doesn’t require being a jerk.
181 years later, it remains abundantly clear that zeal does not trump civility. As did Hoffman, perhaps we can resolve never to permit zeal to carry us beyond the limits of sobriety and decorum.
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