Ethics. I pledge to be civil

• Author: David L. Hudson Jr.
• Pages: 35-36

ETHICS

I Pledge to be Civil

Lawyer speech triggers both civility and constitutional concerns

BY DAVID L. HUDSON JR.

Under ethics rules, there’s a

ne line between zealous

advocacy of a client and

sanctionable conduct. As

jurisdictions nationwide put an em-

phasis on lawyer civility, it’s important

for attorneys to understand proscribed

behavior that can run afoul of ethics

rules and trigger sanctions.

In the 1985 case In Re Snyder, U.S.

Supreme Court Justice Warren Burger

noted that everyone involved in the

judicial process owes a duty of courtesy

to all other participants. And as ofcers

of the court, “the license granted by

the court requires members of the bar

to conduct themselves in a manner

compatible with the role of courts in

the administration of justice.” When

lawyers fail to follow this standard,

they not only lower the bar for the

profession, but they set themselves up

for disciplinary action.

“A lawyer’s freedom of speech

should not include the right to sling

personal insults at opposing counsel

or the opposing party,” notes ethics

expert David Grenardo, who teaches

professional responsibility at St. Mary’s

University School of Law.

There are plenty of examples of what

not to do in the professional discipline

records. Inammatory speech directed

at judges, opposing counsel and others

happens frequently in the courtroom

and has been sanctioned. For example:

• In Florida Bar v. Norkin, one

attorney wrote opposing counsel several

inammatory emails, including: “When

is your unprofessional, ludicrous, down-

right unintelligent conduct going to

stop? Before or after you are directed to

pay my bills?”

• In re Madison: Counsel informed a

judge in a letter that “I do have pro-

found doubts concerning your tness to

preside fairly over cases.”

• An attorney in Florida Bar v.

Abramson told a jury that “the judge

was the one that was completely disre-

spectful, lacking in respect, lacking in

professionalism.”

• A lawyer disparaged a judge as a

“clown” and a “bully” in Hancock v.

Board of Professional Responsibility.

• Counsel called one judge a “lawless

judge” and another “a weak man and

corrupt judge” in Attorney Grievance

Commission v. Frost.

The ABA Model Rules of Profes-

sional Conduct promote courteous and

respectful behavior and limit offensive

attorney speech. Rule 3.5(d) prohibits

lawyer conduct “intended to disrupt a

tribunal,” while Rule 8.2(a) prohibits

a lawyer from “making a statement

that the lawyer knows to be false” or

with “reckless disregard” as to truth or

falsity about a judge. And then there’s

the catchall, Rule 8.4(d), which prohib-

its lawyers from “engag[ing] in conduct

that is prejudicial to the administration

of justice.”

“Some lawyers may argue that they

should be able to say whatever they

want in the name of zealous advocacy,”

Grenardo says. “Lawyers should know

that their conduct and speech are reg-

ulated by the state bar and court rules

because the practice of law is a privi-

lege, not a right.”

The push for civility

H. Scott Fingerhut, a law professor at

Florida International University, ex-

plains that incivility can be traced to the

adversarial nature of law practice in the

U.S. “Civil and criminal litigation are

both so perversely incentivized in Amer-

ica, and the practice of law so increas-

ingly, stressfully competitive, bordering

on cannibalistic, that perhaps civility is

the best we can hope for—because the

truth is both sides want to win, period,

and too often do whatever it takes to

do so.”

State bars have addressed the

problem in myriad ways. Michigan

has a special provision in its rules of

professional conduct requiring lawyers

to be professional and courteous to all

in the legal system. Many states have

so-called professionalism creeds. The

New York State Bar Association hosts

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Practice Matters | ETHICS

ABA JOURNAL | SEPTEMBER–OCTOBER 2019

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