When Unprofessional Conduct Results in Formal Discipline
| Publication year | 2017 |
| Pages | 12 |
PROFESSIONALISM MATTERS
By WILLIAM R. LUCERO AND GINETTE CHAPMAN, OFFICE OF THE PRESIDING DISCIPLINARY JUDGE
Professionalism is a hot topic among Colorado lawyers today. A perceived lack of civility in the bar[1] and declining public confidence in the legal profession[2] have engendered much discourse lamenting the growing trend toward unprofessional conduct, proposing measures to counteract that trend, and promoting the idea that “professionalism matters.”[3] The Office of the Presiding Disciplinary Judge has a somewhat unique perspective on professionalism: in our role adjudicating disciplinary matters, we see how unprofessional behavior can lead to formal disciplinary prosecution and sanctions.
This article reviews the guiding tenets of professionalism and summarizes the interplay between those tenets and the disciplinary system. It also discusses several cases that illustrate how unprofessional conduct can violate the Rules of Professional Conduct and result in severe licensing outcomes.
Overview of Professionalism
As articulated by the Professionalism Coordinating Council of the Colorado and Denver Bar Associations:
Professionalism is conduct reflecting the values embodied in the Colorado Attorney Oath of Admission, the Colorado Principles of Professionalism, and the Colorado Rules of Professional Conduct. These values require attorneys always to act competently, civilly, and with integrity and to commit themselves to the public good and to furthering the interests of justice.[4]
The core values found in these three sources include respect for others, honesty, diligence, punctuality, competence, integrity, candor to the court, fairness, courtesy, a recognition that the law is more than a business, a commitment to our system of justice and the rule of law, a duty to assist those lacking access to justice, the obligation to support and defend our state and federal constitutions, and a faithful commitment to the Colorado Rules of Professional Conduct.[5]
Why is professionalism so worthy of our attention? Professionalism promotes respect and civility in discourse, pride in the profession, high-quality client representation, and the public good.[6] Lawyers who conduct themselves professionally are likely to experience better health, to enjoy rewarding careers, and to gain the respect of their peers.[7]Most crucially, professionalism enhances the public’s perception of lawyers and our system of justice.[8] The reverse of these propositions holds true when lawyers act unprofessionally.[9] Although lawyers report anecdotally that relatively few of their peers routinely engage in unprofessional conduct, even those limited instances of unprofessionalism can cause significant harm to the lawyers themselves, the profession, and the administration of justice.
Interplay between Professionalism and the Disciplinary System
From our vantage point in the disciplinary court, we are somewhat uniquely situated to survey the relationship between professionalism and the disciplinary system. The conduct of lawyers is, of course, subject to the Principles of Professionalism, the Attorney Oath of Admission, and the Rules of Professional Conduct. Despite embracing common core values, these frameworks differ in several ways.
The Principles and the Oath focus on promoting the profession by preserving its central values. Typically, disciplinary sanctions do not apply when lawyers fail to adhere to the Principles or the Oath, which lack enforceability.[10] Moreover, the Rules of Professional Conduct set forth a broader range of duties. Thus, a single instance of a lawyer demonstrating disrespect or incivility in the courtroom to opponents, the court, or third parties rarely gives rise to disciplinary charges. Instead, judges may, and in many instances should, attempt to correct such a lawyer by issuing a stern verbal rebuke, imposing sanctions if warranted under CRCP 37,[11] o r, if the behavior is egregious enough, holding the lawyer in contempt.[12] And unprofessional conduct occurring outside the courtroom—for example, during a deposition, in an email exchange, or in the confines of a law firm—often is answered, if at all, by the opprobrium of the lawyer’s peers.[13]
In contrast with the aspirational tenets of professionalism, the Rules of Professional Conduct establish mandatory standards of conduct, the violation of which may lead to sanctions as...
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