Polishing Rhode Island's Hidden Gem of Professional Responsibility, 0420 RIBJ, RIBJ, 68 RI Bar J., No. 5, Pg. 11
Author | Samuel D. Zurier, Esq. |
Position | Vol. 68 5 Pg. 11 |
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.
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."
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
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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