Polishing Rhode Island's Hidden Gem of Professional Responsibility, 0420 RIBJ, RIBJ, 68 RI Bar J., No. 5, Pg. 11

AuthorSamuel D. Zurier, Esq.
PositionVol. 68 5 Pg. 11

Polishing Rhode Island's Hidden Gem of Professional Responsibility

Vol. 68 No. 5 Pg. 11

Rhode Island Bar Journal

April, 2020

March, 2020

Samuel D. Zurier, Esq.

In recent years, the national political community has debated the significance of "Constitutional norms," or governmental practices and values that are not codified into law.[1] The debate mirrors a longstanding discussion in the legal community concerning the norms of civility and professionalism, which are not codified in the Rules of Professional Conduct. In 1995, the Rhode Island Supreme Court organized a task force to develop the Standards for Professional Conduct within the Rhode Island Judicial System ("Standards"), a set of norms the Supreme Court published in 1996 as an Appendix to Rhode Island's Rules of Professional Conduct. Since then, the Standards have maintained a low profile. This article places Rhode Island's Standards within historical and national contexts that can provide ideas for evaluating and enhancing our hidden gem of professional responsibility.

I. The Development of Rhode Island's Professionalism Standards

In a 1971 address to the American Law Institute, Chief Justice Warren E. Burger sounded an alarm concerning the "necessity for civility if we are to keep the jungle from closing in on us and taking over...rational discourse and... deliberative processes, including the trial of cases in the courts."[2] In 1988, the Torts and Insurance Practice Section of the American Bar Association published "A Lawyer's Creed of Professionalism," which was adapted and adopted by many bar associations, including Rhode Island's in 1989.[3] That same year, the Seventh Circuit Court of Appeals undertook a formal review of the issue of civility, appointing a committee to determine the extent to which "civility problems exist in litigation" and to identify the causes and possible solutions.[4] That Committee conducted a survey of practitioners and judges which identified and documented deep concerns, especially in litigation and, within litigation, in pretrial discovery.[5] The respondents offered a wide range of explanations, including the growth of the bar (which reduced the chance for repeated interactions between attorneys), an increasingly competitive market for legal services, and the increased filing of motions for sanctions.[6] In its 1991 Interim Report, the Committee published its survey results and offered recommendations, including a proposed set of normative standards of conduct for courts to adopt.[7] In 1995, Justice Weisberger, working with the Bar Association, appointed a committee to review the issues of legal civility and professionalism in Rhode Island.[8] That committee developed a set of proposed standards (largely based on the Seventh Circuit's model), which the House of Delegates approved.[9] The Rhode Island Supreme Court adopted the Standards in May 1996, publishing them as an Appendix to Rhode Island's Rules of Professional Conduct (appearing at Article V of the Supreme Court's Rules).

The Standards consist of 68 "obligations" among lawyers, clients, opposing parties, the public, and judges organized into six categories, such as "Lawyer's Obligations To Opposing Parties and Their Counsel" (Category B). Each is phrased as an individual pledge, such as "I will treat all other counsel, parties and witnesses in a civil and courteous manner, not only in court, but also in all other written and oral communications." (Portion of Obligation B-1). Taken as a whole, the Standards define a set of norms, or best practices, for legal professionals.

In a Preamble[10] (which draws upon the Seventh Circuit's model), the Standards define their scope and limitation, stating the following: These standards should be reviewed and followed by all judges and lawyers participating in any proceeding within the State of Rhode Island. Judges and lawyers are expected to make a mutual and firm commitment to these principles. Voluntary adherence is expected as part of a commitment by all participants to improve the administration of justice within the State of Rhode Island. Copies may be made available to clients to reinforce the obligation to maintain and foster these standards.

Strict adherence to these standards, particularly those relating to a lawyer's obligations to the court and to other counsel, may conflict with the interests and desires of a client who does not share or support our duty to advance the administration of justice. The standards anticipate that lawyers will resist pressure from clients to engage in behavior which is inconsistent with these principles. If the client continues to insist that the lawyer pursue a course of conduct contrary to these standards, the lawyer should, subject to the court’s discretion, seek to sever or withdraw from that representation.

These standards shall not be used as a basis for litigation or for sanctions or penalties. Nothing in the standards supersedes or detracts from the existing Rules of Professional Conduct and the Code of Judicial Conduct or alters existing standards of conduct against which lawyer negligence may be determined.

The Preamble attempts to strike a difficult balance. On the one hand, the Standards are strictly voluntary and must yield in authority to all Court rules. On the other hand, the Preamble urges “strict adherence” to the Standards to promote a culture that will enhance and improve the administration of justice in Rhode Island.

The Preamble identifies one possible source of tension, namely the case in which the client instructs the attorney to engage in uncivil conduct. According to Rule of Professional Conduct 1.2(a), the attorney has the initial responsibility to choose the tactical means by which to achieve a client’s goals; however, this is subject to Rule 1.4’s requirement of communication with the client. In the event of a disagreement between client and attorney, Rule 1.2 provides that the client’s view should prevail, a position bolstered by references in the Rules to an attorney’s duty to advocate a client’s position with zeal.[11] The Preamble to the Standards provides an attorney with ethical grounds to withdraw representation of an uncivil client pursuant to Rule 1.16(b)(4).

Some critics have questioned whether civility norms may conflict with the lawyer’s ethical responsibility to serve clients, whose paramount goal is to achieve a favorable outcome in their individual case without regard to the...

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