This article first appeared in the Journal of Civil Litigation, Vol. 35, No. 4, a publication of the Virginia Association of Defense Attorneys. It appears here with permission.
The author thanks The Hon. David W. Lannetti for his co-authorship, research, and insightful contributions to this article.
The [Rules of Professional Conduct] do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.
—Model Rules of Professional Conduct1
I. Introduction
Lawyers are members of a learned and honorable profession, subject to legal ethics rules, and encouraged to be civil as they practice their craft. These fundamental concepts—legal ethics, professionalism, and civility—were formally incorporated into the practice of law gradually over time and along varied and inconsistent paths. At first blush, these concepts appear consistent, and they are often confused with one another. However, like overlapping circles of a Venn diagram, there are portions of each principle that are independent and other portions that intersect at least one of the other principles. Maintaining a client’s confidences within an attorney-client relationship, for example, is not only professional and civil but also is required by the legal ethics rules.
But even with the similarities among this trifecta of legal tenets, there are key differences. For example, attorneys are sometimes required by legal ethics rules to act in a manner that could be perceived as unprofessional and/or uncivil. There also is an inherent tension in the mandatory ethical rules between an attorney’s obligation to zealously represent her client and her obligations to serve the profession as a whole and to be civil; what the client views as actions designed to enhance the probability of success in a legal dispute may be viewed by the opponent—and perhaps by the public—as demeaning to the legal profession or discourteous behavior. Because attorney licensure hinges on adherence to these ethical rules, and because the reputation of the legal profession depends in part on the professionalism and civility displayed by its members, attorneys need to fully understand the extent and interrelationship of these three fundamental notions.
This article explores some of the commonalities and idiosyncrasies of legal ethics, professionalism, and civility with the goal of promoting a better understanding of these concepts and how they relate to the practice of law. Armed with this understanding, individual attorneys will be prepared to avoid disciplinary action and better equipped to practice law with professionalism and civility. More broadly, although current mandatory disciplinary rules outline required conduct by attorneys, the rules do not prohibit—and they in fact encourage—conduct that is consistent with the aspirational goals of professionalism and civility that once were inherent attributes of the practice of law. Although zealous representation is a hallmark of legal representation, and First Amendment jurisprudence now allows legal advertising and client solicitation efforts that traditionally were prohibited, the effect of these practices on the reputation of the legal profession and on civility toward others must be considered. In the vast majority of situations, these goals are not mutually exclusive; rather, they support a win-win situation where attorneys can both serve their clients zealously and enhance the profession. Further, attorneys can serve the legal profession and society ethically, professionally, and with civility in ways that are independent of their client-based duties.
In discussing these topics, Section II provides a historical overview of the gradual development and incorporation of ethics rules, established principles of professionalism, and formal civility standards within the legal profession. Section III attempts to discretely define ethics, professionalism, and civility and provide examples where these concepts align and where they conflict in the practice of law. Finally, Section IV offers observations and recommendations regarding how attorneys who fully understand the boundaries and intersection of these principles can successfully navigate them in their practices to avoid disciplinary action and enhance the legal profession.
II. Law as a Profession
A. Historical Expectations of the Legal Profession
Professions are more than occupations; they involve substantial training acquired over an extended period of time, usually some formal qualification or certification, and a dedication to public service.2 Medicine, religion, and the law were the learned arts that constituted the three original professions to which people were called.3 The required formal training and high regard that these original professions have historically held in society qualified them not only as professions but as “noble professions.”4
Certain benefits come with designation as a profession, including self-regulation and a concomitant level of autonomy.5 In many ways, this autonomy is a historical attribute of the “noble” professions; members were not only thought to be trustworthy but also were in the best position to appreciate the appropriate standards for inclusion and retention of fellow members.6 The legal profession is no exception.7 Lawyers enjoy a high level of autonomy and generally remain self-regulated to this day.8 Over the years, however, the nature and complexity of self-regulation within the legal profession has evolved.9
In exchange for the privilege of professional autonomy, each member of a profession—and the profession as a whole—is obligated to, among other things, maintain high standards of competence, ethical conduct, and public service.10 Hence, from the inception of their recognition as a distinct profession, lawyers were expected to be professional and civil, and rules governing their behavior were impliedly understood rather than reduced to writing.11 Expected to act honorably, lawyers had little internal or external supervision regarding their behavior.12 Formal rules governing the profession came only later.13 What started out as a landscape with little to no oversight evolved into mandatory training, disciplinary tribunals, and potential sanctions that can lead to suspension or revocation of one’s license to practice law.14
B. The Evolution of Legal Ethics
Legal ethics standards in America have existed in one form or another since the formation of the nation, although their scope has varied over time.15 Additionally, whether to make rules or guidelines governing legal ethics mandatory or aspirational has varied.16 Informal norms evolved into formal written rules, although there was some meandering along the journey.17
Before 1908, most states had no clearly established ethical rules or guidelines applicable to practicing lawyers.18 Instead, attorneys were guided by traditions and norms prevalent in the legal profession,19 consistent with the “gentleman-lawyer ideal.”20 If attorneys strayed beyond this zone of unwritten expectations, judges and voluntary bar associations intervened to impose disciplinary corrections or outright punishment.21 Generally speaking, legal ethical principles at that time were viewed through “the prism of morality”22—recognizing that “[i]f, in the broad sense, a man is sound morally, his legal ethics will cause him little difficulty”23— or, relatedly, in the context of an individual attorney’s honor—enabling one to respond to evil temptations through reliance on “the principles of an elevated honour.”24 The accepted understanding was that with the proper upbringing—both personally and professionally—and a desire to be accepted by other attorneys, formalized ethical rules or guidelines were unnecessary.25
Eventually, the need for more formal ethical guidance was acknowledged, and after two years studying the issue, the American Bar Association (ABA) adopted the Canons of Ethics (“Canons”) in 1908.26 This compendium consisted of thirty-two provisions intended to codify “unwritten law” and enunciate “statements of principles and rules accepted and acknowledged by reputable attorneys.”27 Publication of the Canons was, in part, a recognition that some practicing attorneys lacked a clear understanding of their ethical obligations.28 Although the Canons were explicitly aspirational in nature, bar associations and courts soon relied on the provisions to impose discipline on attorneys when necessary.29 This resulted in complaints that the Canons lacked the requisite specificity to properly prescribe discipline and that they inappropriately focused on general principles of morality instead of specific guidance regarding the practice of law.30 Without further instruction and detail, the Canons arguably failed to define either acceptable conduct or unethical practices that were subject to discipline.31
The practice of law in America changed significantly over the first half of the twentieth century as the country became more industrialized.32 Legal practices became more urban, and the legal profession expanded beyond solo practitioners.33 New legal fields grew quickly to meet the needs of society—resulting in many attorneys practicing in specialized areas—and pretrial discovery expanded greatly.34 With these changes also came criticism that the choices made during development of the Canons favored “Big Law Firms” at the expense of “Little Lawyers.”35 Aspirational principles of morality alone were no longer sufficient to ensure the ethical practice of law.36 The legal “golden age” was over.37
In response, the ABA adopted the 1969 Model Code of Professional Responsibility (“Model Code”)38 without amendment and apparently without dissent.39 Recognizing the need to define both morality-driven aspirational principles and minimum standards of acceptable conduct,40 the Model Codewas divided into three interrelated sections: (1) “Canons,” consisting of broad “statements of axiomatic norms”; (2) morality-based “Ethical Considerations,” which were “aspirational in character and represent[ed] the objectives toward which every member of the profession should strive”; and (3) “Disciplinary Rules” that specified “the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.”41 To encapsulate the tripartite nature of the Model Code, the focus of its title was on “professional responsibility,” designed to capture both ethical aspirations and disciplinary mandates.42
The attempt to address both ethics and morality in the Model Code was criticized almost immediately, and numerous substantive “discrepancies” were also soon discovered.43 Some also complained that the Model Code placed “lawyers’ economic interests above client and public interests.”44 As a result of these concerns, as well as the rapidly changing legal climate in the 1970s, initiatives to revise the Model Code began less than a decade later.45 The tipping point was the Watergate scandal during the Nixon administration, which led to twenty-nine attorneys being disciplined and served as the catalyst for the ABA’s requirement that law schools incorporate mandatory professional responsibility training.46 By 1974, sixty-two percent of Americans distrusted the government, a sharp turnaround from a decade earlier when seventy-five percent trusted the government.47
In 1983, the ABA produced a significantly revised and reorganized replacement document: the Model Rules of Professional Conduct (“Model Rules”).48 The Model Rules dispensed with the aspirational “Ethical Considerations” and “Disciplinary Rules” of the Model Code, opting instead to include only black letter ethical obligations with accompanying commentary.49 Based on the elimination of the ethical and moral components of the Model Code, the Model Rules replaced “professional responsibility” with “professional conduct” in its title.50 The Model Rules, therefore, provided clear minimum regulatory standards of conduct below which attorneys could be subject to discipline.51 All states and the District of Columbia eventually adopted a form of the Model Rules.52 Interestingly, the Model Rules—and “legal ethics” as the term is understood today within the legal profession—are largely devoid of the express morality- and honor-based principles that were hallmarks of the Canons of Ethics and Model Code from which the Model Rules evolved.53
C. The Modern Call for Professionalism in the Practice of Law
The exclusion in the Model Rules of the historical morality-based aspirations associated with the practice of law left much to interpretation.54 With only disciplinary mandates, some attorneys took the position that they were not required to demonstrate any measure of responsibility, integrity, or accountability beyond what was expressly prescribed by the Model Rules, using the rules as an excuse not to act above this newly created floor.55 Similarly, without an accepted written reference source, attorneys disagreed regarding what constituted appropriate conduct beyond the express minimal ethical requirements.56 A divide developed among attorneys regarding their proper role: an exclusive duty to zealously represent clients or a duty that extended beyond merely being the client’s agent to society as a whole.57
Adding to the uncertainly was a series of U.S. Supreme Court decisions— handed down in the years leading up to promulgation of the Model Rules— challenging accepted legal practices and associated state disciplinary rules derived from the Model Code.58 In 1975, the Court held that minimum-fee schedules used by bar associations violated federal antitrust law.59 In 1977, the ban on attorney advertising was held to violate the First Amendment,60 although the Court held the following year that in-person solicitation, although allowed, could be subject to regulation.61 In the 1980s, the Court further clarified the allowable restrictions on lawyer advertising: as long as the advertising was truthful and nondeceptive, an attorney could not be disciplined for engaging in the practice.62 Further, in addressing advertising that arguably was not “dignified,” the Court opined that “[t]he mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it” and that “[t]he same must hold true for advertising that some members of the Bar might find beneath their dignity.”63 The Court also addressed attorney fee disclosure requirements, holding that it was misleading for an attorney to fail to inform potential contingency fee clients that they could be liable for the costs of their cases—as opposed to the associated attorney’s fees—because laymen would not recognize the distinction between “costs” and “fees” and could easily conclude that they had no financial obligation.64 Hence, the highest court in the nation expressly approved of multiple practices that once had been universally decried by the legal profession. Times were changing, with some critics thinking it for the better and others thinking it was for the worse.65
Only a year after the Model Rules were adopted, the ABA created a Commission on Professionalism to address its concern that the practice of law had abandoned its prior emphasis on principles of professionalism and the concomitant negative public perception of the legal profession.66 Legal institutions, including the ABA, embarked on a “crusade to re-instill professionalism,” publishing a great deal of literature dedicated to the effort over the next five years.67 In 1988, the ABA House of Delegates recommended that state and local bar associations adopt an aspirational creed of professionalism for their members.68 Today, at least thirty-two state bar associations have incorporated the creed or similar principles of professionalism,69 and at least two states have mandatory professionalism rules.70 In 1988, Virginia led the way in establishing a requirement for all new licensed attorneys to attend a day-long professionalism course.71 Other states soon followed suit and, today, at least thirteen states have a similar requirement.72 Further, the number of states that required practicing attorneys to attend annual mandatory continuing legal education (MCLE) training expanded greatly, and many states began requiring specific annual training on “ethics” or “professional responsibility.”73 Even so, it is unclear whether these efforts to inculcate professionalism have been successful or just paid lip service without the follow-through necessary to encourage, if not foster, compliance.74
D. The Incorporation of Civility Standards into the Legal Profession
As noted above, the legal profession began with implicit standards of civility where informal policing, if required, was conducted by other members of the profession or by the courts.75 It was simply understood that civility was consistent with the image of professionals who had responded to a calling to serve the public and place the needs of others above their own.76 Even without a formal regulatory or disciplinary scheme, ensuring civility within the legal profession was undoubtedly easier when the Bar was “small, closed, and discriminatory.”77
The cause of the decline in civility, or at least the perceived decline, over the past few decades is a matter of debate, although most agree that the timing generally coincided with the Bar’s perceived need in the 1980s to restore professionalism to the practice of law.78 Proposed causes of the rise in incivility include the growing number of lawyers; the transition of the profession of law to a business that demanded more and more billable hours; the failure of law schools to teach civility; the relaxation in restrictions regarding lawyer fees, solicitation, and advertising by the U.S. Supreme Court; the interpretation of the Model Rules that zealous advocacy somehow sacrificed civility toward nonclients; and the increase in societal incivility generally.79 But regardless of the cause, the consensus among the courts and a majority of the Bar was that the situation needed to be addressed.80 So, starting in 1986, courts and bar associations began adopting codes of civility.81 Similar to the principles of professionalism, these standards were intended as aspirational guidelines to clarify and articulate value-based expectations above and beyond the minimum standards required by the Model Rules.82
Today, at least eleven states have adopted a form of civility code.83 Some are merged with the state’s or bar association’s principles of professionalism, and some are separate documents.84 Although these civility codes are primarily aspirational in nature, a minority of states have imposed discipline for violations.85 Additionally, several states have incorporated “a civility pledge” in their oaths of admission taken by newly admitted attorneys.86 Finally, some have argued that civility should be mandated to address what they consider to be an ongoing crisis,87 and a handful of states have responded by doing so.88
III. The Interplay between Legal Ethics, Professionalism, and Civility
A. Understanding the Relationship Between the Concepts
Within the legal profession, there is no clearly established demarcation between legal ethics, professionalism, and civility. Lawyers are required to pass legal ethics or “professional responsibility” examinations,89 must comply with rules of professional conduct,90 and are expected—and, in some jurisdictions, required—to act professionally and with civility.91 Understanding the definitions and boundaries of these principles is integral to identifying how they interact and overlap. Appreciating how the concepts intersect is also necessary to guide attorneys in the proper practice of law.
- Legal Ethics
As an initial matter, use of the word ethics as part of the generally recognized phrase legal ethics is a misnomer today. Pursuant to virtually all recognized definitions, ethics is defined as, or includes, some set of moral principles.92 By contrast, in the legal profession, legal ethics refers to specific disciplinary mandates, that is, formal written requirements that attorneys subject to those obligations are required to follow to avoid discipline and maintain their license to practice law.93 As discussed above, the current Model Rules, which were adopted in 1983, stripped out the aspirational morality-based components of the previous Model Code, which was adopted in 1969—as well as the predecessor to the Model Code, the Canons, which were adopted in 1908—leaving only the rules defining the minimum level of acceptable attorney performance, below which attorneys may be subject to sanctions.94Contributing to the semantic confusion, most law schools require that students take a “professional responsibility” course,95 and prospective lawyers in almost all states must pass the Multistate Professional Responsibility Examination (MPRE) in order to be licensed to practice law in that jurisdiction.96 These courses and examinations focus primarily—if not solely—on the disciplinary mandates derived from the Model Rules.97 Further, once licensed, all lawyers must comply with the version of the Model Rules adopted in their jurisdiction in order to maintain the privilege of practicing law98 and, in almost all states, must participate in annual “ethics” MCLE training.99 Hence, contrary to references to “professional conduct” and “professional responsibility,” legal ethics does not establish an ideal behavioral model or any morality-based standard of conduct. Rather, the rules comprising legal ethics define the minimum level of acceptable conduct before a lawyer may be subject to formal discipline by the jurisdiction’s regulatory body.100 Hence, a more accurate term for legal ethics would be “disciplinary mandates.”
- Professionalism in the Practice of Law
There is no clearly accepted definition of the term professionalism, and it has been—and continues to be—used inconsistently.101 From a semantic standpoint, the suffix -ism refers to “an act, practice, or process,”102 so professionalism is simply the distinctive practice of members of a profession. However, that too is unhelpful, as the definitions of professional and profession also are unsettled.103 Although a profession originally was understood to refer to an organized group practicing a learned art to serve the public,104 its connotation has evolved over time.105 In modern practice, civility is often subsumed under professionalism; an uncivil individual is considered unprofessional.106 In other contexts, legally unethical conduct is subsumed under professionalism; violating a mandatory disciplinary also is considered unprofessional.107For our purposes, it is important to define professionalism narrowly to distinguish it from both legal ethics and civility. This will minimize the overlap between the concepts yet capture, in an ideal legal environment, all unacceptable conduct, that is, conduct that is unethical, unprofessional, or uncivil. Professionalism should, however, encompass “the full measure of the profession’s aspiration and … society’s legitimate expectations.”108 The focus on an attorney’s obligations, therefore, should be on service to the profession of law and to society as a whole.109 This includes how society views both the legal profession and the lawyers who make up that profession.110Because legal ethics defines the mandatory conduct of attorneys, professionalism by definition is aspirational in nature.111 Hence, professionalism is not what an attorney must do, but rather what an attorney should do to preserve the integrity of our system of justice and thereby serve the public interest.112
- Civility in the Practice of Law
Like professionalism, civility is a vague concept subject to multiple definitions that struggle to fully capture the sense of the term in practice.113 Etymologically, the word means “relating to citizens,” and from that perspective it can be equated with “a behavioral code of decency or respect that is the hallmark of living as citizens in the same state.”114 However, like legal ethics and professionalism, it is desirable to define civility narrowly to minimize any overlap with the other two principles and to facilitate focusing on the intersecting regions.115 For these reasons, civility can be defined as “acting with formal politeness and courtesy when communicating or working with opposing parties, opposing counsel, clients, and outside parties,” as opposed to how the public views the legal profession.116 Nevertheless, if individuals in the legal process act civilly toward one another in a public setting, society is more likely to respect and have a positive image of the legal profession, thereby contributing to professionalism as well.117 Further, civility does not preclude instances of disagreement or serious debate; rather, it defines how lawyers should act when in those situations.118Many view civility as merely a component of professionalism, claiming that respecting others and treating everyone with dignity is a natural part of being a professional.119 With our narrow definition of professionalism, however, we can specifically identify the concept of civility.120 Most would agree that civility involves how our parents taught us to interact with other people: with respect, courtesy, and good manners.121 Some would say civility is a version of the biblical Golden Rule—treating others as we would have them treat us122—or that civility is simply adherence to Robert Fulghum’s common sense guidance in his best-selling book, All I Really Need to Know I Learned in Kindergarten.123 In the legal arena, it arguably goes a step further. As one court noted, “Civility refers to ‘more than surface politeness; it is an approach that seeks to diminish rancor, to reconcile, to be open to nonlitigious resolution.’”124Like professionalism, civility is aspirational, with legal ethics establishing the standard for mandatory attorney conduct.125 Whereas professionalism focuses on service to the legal profession itself, civility focuses on service to others.126 In other words, professionalism is viewed from the vantage point of society while civility is observed from the perspective of those who interact with the attorney, whether clients, opposing counsel, third party litigants, or courts.127Perhaps former U.S. Supreme Court Justice Anthony Kennedy provided the ideal explanation regarding the importance of civility to the American legal profession and to our way of life:
Civility is the mark of an accomplished and superb professional, but it is even more than this. It is an end in itself. Civility has deep roots in the idea of respect for the individual. We are civil to each other because we respect one another’s human aspirations and equal standing in a democratic society. We must restore civility to every part of our legal system and public discourse. Civility defines our common cause in advancing the rule of law. Freedom may be born in protest, but it survives in civility.128
As Justice Kennedy alluded, civility has repercussions beyond interpersonal relations. As one court opined, “The dignity, decorum, and courtesy that have traditionally characterized the courts and legal profession of civilized nations are not empty formalities. They are essential to an atmosphere that promotes justice and to an attorney’s responsibility for the fair and impartial administration of justice.”129 The exercise of civility also directly affects the efficient practice of law, including expediting litigation.130 Further, litigants who are treated with dignity and courtesy are more likely to respect the rule of law and the justice system.131
Although civility can be unethical under certain circumstances, those situations are extremely rare.132 In most cases, civility positively contributes to the timely and efficient administration of justice, as well as—indirectly—to the reputation of attorneys and the legal profession generally.133 Further, when attorneys treat each other with civility, it makes the practice of law much more enjoyable.134
B. Where the Concepts Align
Ideally, all lawyers should be ethical, professional, and civil. If that were the case, every lawyer would be honest, dignified, and courteous, and there would not be a professionalism or civility crisis.135 As a profession, legal regulatory agencies control, among other things, access to the profession, standards of conduct, discipline, and retention of membership.136 They do not, however, mandate professionalism or civility—at least not in most jurisdictions.137 Legal ethics rules determine minimum acceptable conduct, while professionalism enhances the public’s view of the legal profession, and civility ensures others are treated with dignity and respect.138 There is nothing inherent in the legal profession that should prevent compliance with legal ethics, professionalism principles, and civility aspirations from being aligned in the practice of law.
It is worth noting that the disciplinary mandates of the Model Rules, while devoid of express morality-based aspirational principles, do not preclude incorporating professionalism and civility into the practice of law; in fact, the rules encourage such efforts.139 The Model Rules clearly recognize that an attorney’s place in society is still the result of a “professional calling.”140 Additionally, the preamble to the Model Rules includes the following guidance:
Within the framework of [the Model Rules], however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles 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.141
The stated scope of the Model Rules is even more direct: “[t]he Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.”142
C. Where the Concepts Conflict
Although the concepts of ethics, professionalism, and civility normally are aligned when attorneys practice law, adhering to these concepts individually in a given situation can lead to markedly different results, which is why it is important to avoid considering any one concept in isolation.143 As an initial proposition, because ethics represents the minimum acceptable conduct below which an attorney risks loss of her license—and because morality-based conduct normally is aspirational—it logically follows that professional conduct and civil conduct should also be ethical. However, this is not always the case.
To assist in identifying the ideal conduct of an attorney who seeks to be ethical, professional, and civil, it might be helpful to envision unacceptable attorney conduct and focus on the intersection of the principles. One can think of this evaluation in the context of a Venn diagram consisting of three overlapping circles, one each for unethical conduct, unprofessional conduct, and uncivil conduct.144 With the proper overlap of the three circles, there are seven areas: (1) conduct that is uncivil only; (2) conduct that is both unprofessional and uncivil; (3) conduct that is unprofessional only; (4) conduct that is unethical only; (5) conduct that is both unethical and unprofessional; (6) conduct that is both unethical and uncivil; and (7) conduct that is unethical, unprofessional, and uncivil, illustrated by the center area of the Venn diagram that contains portions of all three circles.145
The first three listed areas involve conduct that is not within the unethical circle, and so outside the scope of the Model Rules, but nevertheless violates the aspirational principles of professionalism and/or civility. Hence, conduct in these areas would not normally involve expressly prohibited conduct under the Model Rules and therefore would not result in discipline. These categories are what feed the general stereotype that lawyers act unprofessionally or contrary to what they should do to serve the legal profession and the public at large; or that they act with incivility by treating others discourteously or disrespectfully.146 For instance, consider an opposing counsel who exhibits a sarcastic or condescending attitude during a deposition as an intended distraction.147 There is nothing unethical about such an annoyance, but it certainly demonstrates a lack of respect.148 Another example is a lawyer who regularly swears at, abuses, or belittles an opposing attorney during a telephone conference; such behavior is not inherently unethical, but again, it is uncivil.149
Additional examples of conduct that is uncivil—but arguably is neither unethical nor unprofessional—include exaggerating facts, negotiating in bad faith, forwarding demeaning or threatening written communications, not agreeing to reasonable requests, and making comments that are sexist, ageist, racist, or similarly inappropriate.150 Using the above definitions, such conduct is ethical because it does not violate the Model Rules, at least under most circumstances, and it is not unprofessional because it likely does not negatively affect society’s perception of the legal profession, assuming the communications are only between attorneys.151
Had similar conduct occurred in a public setting, such as in the courthouse lobby or in a courtroom in front of the general public before court started, it likely would constitute conduct that is both uncivil and unprofessional because, in addition to its effect on the attorneys involved, it likely would also have an adverse effect on the public’s view of the legal profession generally.152 Assuming that the conduct did not violate the Model Rules, however, it still would be ethical based on the above definitions.153 Use of “Rambo” litigation tactics, such as abusive discovery or deposition practices that do not technically violate applicable procedural rules, similarly can be either uncivil only—if not displayed in front of nonlawyers—or both uncivil and unprofessional—if viewed by members of the public.154
An example of conduct that, although ethical, can be unprofessional is undignified lawyer advertising,155 such as commercials that use lawyers with nicknames like “switchblade” or “the hammer,”156 or an attorney who offers a “buy one, get the next one half off” divorce coupon.157 Although lawyer advertising was once forbidden—in part to avoid advertising that would stain the image of the legal profession—the U.S. Supreme Court held in 1977 that it is a First Amendment violation to prohibit lawyer advertising, as long as the advertising is truthful and nondeceptive.158 Hence, truthful but undignified advertising does not violate the Model Rules and, therefore, is ethical.159 Such communication is unprofessional because it may demean the legal profession, but it is civil if it is not discourteous or disrespectful to the individual recipients or if it involves no direct interaction with an attorney.160
Another example of conduct that is unprofessional—but can be both ethical and civil—is an attorney’s use of an inadvertently sent email or facsimile to gain advantage over an opponent. Under such circumstances, the Model Rules require only that the receiving attorney notify opposing counsel; the rules are silent on the recipient attorney’s additional obligations, if any, regarding return or use of the document or its information.161 Some states require the recipient to refrain from reading or using the communication once it is apparent that it was sent inadvertently while other states allow use of the document, finding that any lawyer-client privilege was waived upon sending.162 Although the client who benefitted likely would view this as professional—a lawyer zealously representing his client—the disadvantaged client almost certainly would view the practice as underhanded and, therefore, unprofessional.163
The other four areas of the Venn diagram relate to conduct that is unethical and prohibited by the Model Rules.164 In some cases, however, complying with the Model Rules may appear to be unprofessional and/or uncivil, which may seem counterintuitive; it might be surprising to realize that an attorney who is abiding by aspirational rules of professionalism and civility can be disciplined for such behavior. For obvious reasons, it is important to be able to recognize such situations.
An example of unethical conduct that could appear both civil and professional involves a represented client who, without permission of her attorney, contacts opposing counsel. Rule 4.2 of the Model Rules states that, absent specific exceptions, “a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.”165 The rule commentary provides that if an attorney is contacted by a represented person, the lawyer “must immediately terminate communication” upon discovering
that the person is represented.166 By its plain language, this requires the attorney to literally hang up on a calling client without further communication, an act that most people would consider—rightly so—to be both uncivil, as it is discourteous, and unprofessional, as it reflects poorly on the legal profession.167
Virginia dealt with this exact issue in 2013 in Zaug v. Virginia State Bar.168 There, a distraught medical malpractice plaintiff called the defendant’s attorney.169 During the call, which lasted less than a minute, the plaintiff explained the toll that the litigation was having on her family and stated that a family member’s deposition needed to be cancelled.170 The attorney apologized, explained that she could not help, and instructed the plaintiff that she needed to contact her attorney.171 Despite the attorney’s attempt to terminate the call, the plaintiff exclaimed that she had been unable to reach her attorney and, at some point, claimed that she wanted to dismiss the lawsuit.172 The attorney again stated that she could not help, told the plaintiff that she needed to contact her attorney, and finally terminated the call.173 The plaintiff’s attorney subsequently reported the alleged misconduct to the Virginia State Bar, which found that the defense attorney had violated Rule 4.2.174 A three-judge circuit court175 panel affirmed the decision.176 The defense attorney then appealed to the Supreme Court of Virginia, Virginia’s highest court.177 The defense attorney argued that “immediately” does not mean “instantaneously” and that “the Rule does not obligate an attorney to hang up on a represented person without regard to courtesy.”178 The supreme court agreed, opining that although the rule “requires an attorney to disengage from such communications when they are initiated by others,” it “does not require attorneys to be discourteous or impolite when they do so.”179 Despite this outcome, a narrower interpretation by a court of “immediately”—which arguably would not be unreasonable—could have led to the opposite outcome, as demonstrated by the disciplinary committee’s and circuit court’s decisions.180 In other words, not hanging up would be both civil and professional, but it nevertheless could be unethical and therefore prohibited, and sanctionable, in some jurisdictions.181
Other types of unethical conduct may be perceived as unprofessional or uncivil.182 For example, assume that an attorney, Roy, and his law school classmate, Joe, are opposing counsel in a federal court litigation matter.183 Roy filed a dispositive motion and supporting brief, and the jurisdictional deadline for Joe to file a responsive brief is this Friday. During a conference call in which Roy and Joe were meeting and conferring to discuss discovery disputes in the case, Roy commented that he would not have much of a weekend because he would be working on the responsive brief that is due on Monday. Recognizing that the judge undoubtedly will grant the motion if a responsive brief is not timely filed, Joe informed his friend that the brief is actually due on Friday and not Monday. While this certainly appears to be the civil thing to do—preventing a friend from making a major mistake—it is unethical and arguably unprofessional.184 Model Rule 1.3 prohibits an attorney from prejudicing his client’s case, thereby placing an attorney’s duty to his client above civility and, in this case, friendship.185 Advising the friend of the mistake could also be viewed as unprofessional, as the public might view it—if word got out—as contrary to the proper administration of justice, reflecting negatively on the legal profession.186 Further, Joe is precluded from going along with Roy’s mistake by commenting, for instance, that “Monday deadlines are a pain,” as that likely would be viewed as a false representation.187 Similarly, an attorney who files a frivolous discovery request also commits unethical conduct that also is uncivil, as it could harass the recipient;188 once again, whether such conduct is also unprofessional depends on the public’s awareness of the conduct and its view of whether such conduct is consistent with an attorney’s duty to zealously represent her client.189
It perhaps is unsurprising that some unethical conduct can also be both uncivil and unprofessional at the same time.190 In-person solicitation for legal services, such as the stereotypical “ambulance chaser” who solicits legal services from injured strangers in a hospital recovery room, is one example.191 Model Rule 7.3 expressly prohibits in-person solicitation when, among other things, the attorney’s motive is pecuniary gain.192 Hence, under the Model Rules, an in-person solicitation of a recovering accident victim whom the attorney does not know is unethical.193
Because such a situation arguably takes advantage of the injured party’s weakened physical, and maybe mental, state—and any resultant legal services agreement may be the result of duress—the in-person solicitation also is disrespectful.194 And because such a practice casts a bad light on the practice of law—taking advantage of those in need—it is also unprofessional.195 A lawyer conspiring with his client for the client to testify falsely in court also would constitute unethical conduct that is both unprofessional—an attorney committing a fraud on the court—and uncivil—dishonest behavior.196
There are two major takeaways from this analysis for attorneys who seek to be ethical, professional, and civil. First, lawyers must understand and comply with their jurisdictional rules of professional conduct—which may deviate from the Model Rules197—because noncompliance can result in discipline and, in extreme cases, in suspension or revocation of their license to practice law.198 And second, as members of a noble profession, attorneys should always act with professionalism and civility unless doing so would prejudice their clients’ cause or legitimate objective.199
IV. Navigating Ethics, Professionalism, and Civility in the Practice of Law
Just because attorneys are permitted to do something without violating the Model Rules does not mean that they should.200 Although the Model Rules arguably are limited to disciplinary mandates, there is much in its precatory material and commentary indicating that lawyers are expected to be both professional and civil.201 For instance, in the commentary regarding “Client-Lawyer Relationship” and an attorney’s duty to act with diligence and promptness, zealous representation of clients is discussed, but the following guidance is provided:
A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.202
With an understanding of the definitions of legal ethics, professionalism, and civility—as well as an appreciation of how the concepts interrelate—we turn to the question of how an upstanding, or honorable, attorney should practice law.203 Compliance with the Model Rules is required, as these rules establish the minimum acceptable level of conduct.204 Beyond that, an attorney should act professionally—serving society and advancing the profession of law—and with civility—treating others with dignity and respect—unless precluded from doing so by the Model Rules, although such exceptions will be rare.205
The term zealous advocacy of a client’s legitimate interests is controversial because of the varying interpretations of zealousness.206 Although the Model Rules clearly recognize this obligation,207 they also caution attorneys to exercise that duty with professionalism, courtesy, and civility.208 This caution is appropriate, as some attorneys have taken zealousness to the extreme, interpreting the term to mean fighting for one’s client at all costs.209 However, the first sentence of the preamble to the Model Rules makes it clear that an attorney’s duty goes beyond client allegiance: “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.”210 Zealous advocacy does not give lawyers license to be a jerk.211 Zealous advocacy does not mean belittling the other side or strategically filing a brief or serving discovery right before a holiday.212 Rather, zealous advocacy is, or should be, representing a client to the fullest while also being a person of the utmost integrity who treats the opposing party and counsel with respect and courtesy.213
Being professional and civil almost always serves the client’s interests.214 Basic continuance requests are commonplace in the profession, and agreeing to extend a briefing deadline because opposing counsel is on a previously scheduled vacation or to a discovery response extension should not be a huge dilemma.215 Many attorney engagement letters defer “case management” decisions to attorneys without the need for client input, making seeking client approval for opposing counsel’s extension requests unnecessary.216 But for those clients for whom
approval is necessary, attorneys can convey how agreeing to an extension for the other side now is not only a professional courtesy and the right thing to do but also may benefit the client down the road when a similar extension is needed.217 Some clients may not understand the reciprocity considerations and may just want to “stick it” to the other side; in those instances, it is important to understand that unprofessional and uncivil behavior can affect the attorney’s credibility with the judge—and, therefore, the chances of succeeding in the case—and that conduct in one case will have ripple effects on future cases.218
Being professional and civil also serves attorneys themselves. Although a minority of clients may disagree, the rest of those involved in the practice of law— including other attorneys and judges—expect professionalism and civility.219 In most cases, it is easy to distinguish between attorneys who zealously represent their clients as envisioned by the Model Rules and those who are difficult simply to be difficult.220 The former will enjoy a far better reputation within the legal community. It may be easy to forget in the moment of a heated proceeding, but attorney reputations extend beyond any single case: future clients benefit from current positive behaviors and current clients benefit from past behaviors.221 Attorneys with reputations for being unprofessional and uncivil, on the other hand, will carry that baggage with them to their detriment.222 Unprofessional and uncivil attorneys also run the risk of being sanctioned by the court.223
A. Leading by Example
Lawyers enjoy the benefits of being members of an honorable profession (such as social status, autonomy, and self-regulation) but they must also be mindful of their obligations to the public (including competence, self-discipline, and ethical conduct) and lead by example.224 Legal ethics mandates establish the floor of acceptable behavior, with professionalism and civility being not only an undefined aspirational expectation but also attributes to purposefully incorporate and excel at in the everyday practice of law.
Attorneys can model professionalism and civility by intentionally choosing the path that enhances the legal profession, including in the eyes of the public, while treating others—even the most difficult opposing counsel and clients—with dignity and respect.225 When dealing with opposing counsel, this may mean, being firm but respectful when faced with an unreasonable request or a passive aggressive email.226 It may result in giving others the benefit of the doubt and presuming that opposing counsel is acting in good faith when it may initially seem otherwise. Just because opposing counsel or an adverse party is acrimonious does not mean that an attorney should respond in kind.227 Similarly, just because the other side runs to the courthouse at the hint of any possible dispute does not mean that the lawyer should do the same.228 Trying to resolve disputes in good faith without the need for court intervention is not only appreciated by the court but also serves as an opportunity to demonstrate professional behavior.229 When dealing with clients, professionalism and civility may manifest themselves in regular client communications.230 It may mean providing additional information about the attorney’s assessment of the case and outlining in detail reasonable expectations of results.231 It also may involve speaking with clients about an attorney’s obligation to act professionally and civilly, and about their expected behavior toward opposing counsel and the court.232 Professionalism also means that attorneys will not denigrate the judicial process in conversations with clients, and that lawyers will not only refrain from telling lawyer jokes but also point out that such humor inappropriately demeans the profession.233
All lawyers have their own priorities and ways of conducting themselves that feel natural to them. Given the variety of personalities and styles, it is important to develop one’s own style and stay true to it while being open to improvement.234 Reputations can often carry the day. As Socrates said, “The way to gain a good reputation is to endeavor to be what you desire to appear.”235 Judges talk about which attorneys are professional and civil, and they surely make at least a mental note of those who endeavor to elevate the profession and treat others as they want to be treated.236 Newer attorneys also notice the behavior of more seasoned practitioners, especially those for whom they work and those who serve as mentors.237 Much as the brain rapidly absorbs new information and material during infancy, the fledgling attorney is highly impressionable.238 Providing a positive role model not only shapes the behavior of other attorneys but also influences future generations of lawyers—and the public’s perception of the legal profession—for the better.239
Leading by example extends outside the courtroom as well. Although the U.S. Supreme Court held that certain restrictions regarding attorney fees, solicitation, and advertising impermissibly infringed on First Amendment rights,240 those decisions did not constitute a license to be unprofessional or uncivil in these areas.241 Empirical evidence demonstrates that undignified advertising detracts from the public’s respect for the justice system and the legal profession as a whole.242 By contrast, successful lawyer advertising, solicitation of legal services, and free expression of speech in other communications can be conducted without demeaning the legal profession and without being disrespectful and discourteous to others.243 The vast majority of attorneys already do this, and attorneys owe it to society and its citizens to act in a way that engenders respect for the rule of law and the legal profession.244
B. The Option to Decline Representation
Knowing how to govern oneself when things go wrong is just as important as modeling behavior in everyday practice. The American legal system relies on attorneys acting as advocates, and it has long recognized that everyone—even those who clearly are guilty—are entitled to legal representation.245 However, the Model Rules expressly recognize that there may be instances in which an attorney’s personal morality or honor conflicts with client representation that is ethical and permitted by the Model Rules.246 In those situations, there usually is no obligation to represent, or to continue to represent, a client.247
Although critics of earlier ABA codes asserted that legal ethics rules forced lawyers into the role of a zealous advocate who was required to place client interests above all others—forbidding lawyers from allowing their own values or the interests of third parties from affecting their representation decisions—any such criticism regarding the Model Rules is misplaced.248 As an initial matter, the Model Rules recognize that lawyers play several roles in addition to advocate, including advisor, negotiator, and evaluator.249 The Model Rules also encourage lawyers, in any of these roles, to consider their “own interest in remaining an ethical person” and to resolve “difficult issues of professional discretion” through “the exercise of sensitive professional and moral judgment guided by the basic principles underlying the [Model Rules].”250
Additionally, in a significant change from the prior Model Code,251 a lawyer may withdraw from representation whenever “a client insists upon pursuing an objective the lawyer considers repugnant or imprudent,” ostensibly even if the client’s interest will be adversely affected by the withdrawal,252 if the court permits.253 An attorney is also allowed to “limit the objectives” of representation by excluding client aims the attorney finds objectionable.254 These rules were specifically designed “to resolve the ‘potential conflict between the lawyer’s conscience and the lawyer’s duty to vigorously represent a client.’”255
C. Using Self-Improvement to Enhance Professionalism and Civility
Most attorneys constantly look for ways to better themselves as experts within their fields of practice, seeking out new experiences and milestones to make them better at their craft.256 It is easy to view self-improvement narrowly: as only those educational tasks necessary to make a lawyer better from a technical perspective.257 For example, newer attorneys might consider bettering themselves by preparing for their first time taking a deposition, their first jury trial, their first commercial closing, or their first federal court case. But individual improvement is not limited to just these recognized legal skills and tasks. Individual attorneys can develop and promote their understanding of ethics, professionalism, and civility in a variety of ways.
First, topic-specific educational programs are an excellent way to learn about recent ethics opinions and other common ethical issues facing attorneys.258 MCLE programs are designed to improve an attorney’s professional competence and skills and thereby provide higher quality legal services to the public.259 These programs usually provide real-world hypotheticals and touch on topical issues that may not be clearly black and white.260 More experienced attorneys can also teach newer attorneys, as well as law students, thereby serving the profession as they instruct the next generation of lawyers.261 Hence, increasing exposure to ethical issues by ongoing education is a great way to broaden understanding and help spot issues in the future should an unusual ethical issue arise. They also can lead to improved professionalism and civility, which can improve the image of the legal profession.262 Similar to participating in continuing legal education programs, reading legal scholarship—like this article—is another way to understand and explore the differences in legal ethics, civility, and professionalism.
Mentorship relationships also present excellent opportunities to learn about and incorporate ethics, professionalism, and civility in everyday practice.263 Mentors can teach newer attorneys and law students how local bar members handle themselves, including what behavior is customary and what practices are unacceptable.264 Beyond serving as role models, mentors can assist mentees in developing strategies to implement professional and civil practices, which likely will have the secondary effect of contributing to the mentee’s happiness, wellbeing, and productivity.265 Mentors also have a wealth of personal experience from which a mentee can benefit and learn.266 Hence, mentors can explain the nuances of ethics, professionalism, and civility based on situations they have confronted in the past.267 For example, they can share information about a time when they made a mistake or did not understand or fully appreciate the scope of a situation. This may be particularly useful when dealing with ethical situations in which a possible response may be professional and civil but simultaneously unethical. Mentorship also creates a sense of community, which encourages professionalism and civility because the relationship reinforces the knowledge that individual attorneys are not lone wolves in the legal profession.268 Attorneys who feel less isolated and more like team members have greater odds of positively contributing to the legal profession and treating others with courtesy and respect.269
Pro bono contributions are vital both to provide needed legal representation to the poor—to help close the Justice Gap270—and to ensure that our system of advocacy operates as intended, both of which are crucial to the proper administration of justice and the public regard for the legal profession.271 A lawyer who voluntarily represents a party who otherwise would be self-represented vastly improves the odds that justice will prevail and that those being served will perceive that they had their day in court and were heard and treated fairly.272 Professionalism in this context also tends to be contagious; people enjoy doing things when they see other attorneys do them and make a positive difference.273 Hence, having one person in a firm take on a pro bono case and share her experience with her colleagues can have the collateral effect of inspiring others to create positive change. Pro bono service often results in additional court time, more frequent interaction with judges, and exposure to other areas of the law, all of which improve individual lawyer competence.274 From a broader perspective, volunteer attorney service has the collateral effect of improving the public’s perception of the legal profession.275 More important, pro bono service is exactly the type of public service demanded of a profession.276
Getting to know other attorneys in a local, practice-specific, or statewide bar association is a great way to foster civility.277 As William Shakespeare wrote, “Do as adversaries do in law, strive mightily, but eat and drink as friends.”278 People who know each other are most likely to respect and to be kind to one another.279 Specialized professional groups like the Inns of Court program are another enjoyable way to get to know fellow practitioners in your area.280 Membership in a local Inn of Court is a great opportunity to connect with local attorneys— while learning about professionalism and civility—in an informal setting, which can make the interaction less awkward and more personal.281
Using ethics, professionalism, and civility in the practice of law is a worthwhile endeavor. Attorneys who have positive role models, have courteous opposing counsel, and feel supported in their darkest times are more likely to stay—and thrive—in the profession.282 Ultimately, all lawyers must accept their professional obligation to act ethically and honorably, to create and maintain a justice system of which the public can be proud, and to treat others with respect and courtesy. As former Supreme Court of Virginia Chief Justice Donald Lemons aptly noted, “The practice of law is a noble profession. All of us must work together to keep it that way.”283
V. Conclusion
Many attorneys get lost trying to understand the nuanced similarities and differences between legal ethics, professionalism, and civility. They do not fully appreciate the difference between these principles and mistakenly use the terms interchangeably or incorrectly. But legal ethics, professionalism, and civility all have their own places in the practice of law. None of the concepts is more significant than the others. Compliance with all three is required in order to uphold the time-honored values of the legal profession. Appreciating the interplay between these principles—including the areas in which they intersect—is vital to avoiding attorney discipline and enhancing professionalism and civility in the practice of law.
Attorneys must have a clear understanding of the legal ethics rules because adherence is required to maintain their license to practice law and to prevent discipline. Further, as members of a noble profession, attorneys should—or, arguably, are obligated to—act with professionalism and civility unless doing so would prejudice their clients’ cause or legitimate objective. The principles of legal ethics, professionalism, and civility normally are aligned, making the course of conduct clear. In those few instances in which they conflict, a lawyer must abide by the legal ethics rules, recognizing that our system of advocacy will ensure justice is done. As part of their commitment to the highest ideals of professionalism and civility, lawyers also must recognize their obligation to serve both their profession and the public at large. In that regard, there is much that attorneys can do to improve themselves while contributing to the legal profession, including participating in additional training, mentoring less experienced attorneys and law students, engaging in pro bono service, and becoming actively involved in bar associations.
In the end, professionalism and civility are only aspirational, at least for the foreseeable future. But committing to these principles in the everyday practice of law is more than just doing what is right as professionals. As Justice Sandra Day O’Connor aptly observed, “More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.”284 With an appreciation of how to navigate the labyrinth of legal ethics, professionalism, and civility, attorneys will be better equipped to avoid discipline and enhance the legal profession.
1 Model Rules Pro. Conduct scope cmt. [16] (Am. Bar Ass’n 1983) [hereinafter Model Rules].
2 See, e.g., Profession, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/profession (last visited June 25, 2023) (defining profession as “a calling requiring specialized knowledge and often long and intensive academic preparation”); ABA Comm’n on Professionalism, “… In the Spirit of Public Service:” A Blueprint for the Rekindling of Lawyer Professionalism, 112 F.R.D. 243, 261 (1986) (quoting Harvard Law School Dean Roscoe Pound’s definition of professional as “pursuing a learned art as a common calling inthe spirit of public service”).
3 Edmund D. Pellegrino, What Is a Profession?, J. Allied Health 168, 168 (Aug. 1983); see also James M. Gustafson, Professions as “Callings,” 4 Soc. Serv. Rev. 501, 501 (1982) (“The idea of an occupation as a ‘calling’ refers to some moral and perhaps religious motives and to a vision of the larger ends and purposes that work serves.”).
4 See generally Jennifer M. Granholm, Nobility in the Practice of Law, 78 Mich. Bar J. 1397 (1999) (discussing law as a “noble profession”).
5 Pellegrino, supra note 3, at 168.
6 See Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. Rev. 1256, 1268 (1992); see also Neil Hamilton, Professionalism Clearly Defined, 18 Prof. Law. 4, 4–5 (2008) (“The public grants a profession autonomy to regulate itself through peer review, expecting the profession’s members to control entry into and continued membership in the profession, to set standards for how individual professionals perform their work so that it serves the public good in the area of the profession’s
responsibility, and to foster the core values and ideals of the profession.”).
7 See Criton A. Constantinides, Professional Ethics Codes in Court: Redefining the Social Contract between the Public and the Professions, 25 Ga. L. Rev. 1327, 1332–44 (1991) (“Self-regulation … helps maintain the legal profession’s independence from government domination.”).
8 Pellegrino, supra note 3, at 169–71.
9 Veronica Root Martinez & Caitlin-Jean Juricic, Toward More Robust Self-Regulation within the Legal Profession, 69 Wash. U. J.L. & Pol’y 1, 32–34 (2022).
10 Hamilton, supra note 6, at 5 (“In return [for professional autonomy], each member of the profession and the profession as a whole agree to meet certain correlative duties to the public: to maintain high standards of minimum competence and ethical conduct to serve the public purpose of the profession and to discipline those who fail to meet these standards; to promote the core values and ideals of the profession; and to restrain self interest to some degree to serve the public purpose of the profession.”).
11 Croft, supra note 6, at 1327.
12 Donald E. Campbell, Raise Your Hand and Swear to Be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 Gonz. L. Rev. 99, 129–30 (2011–2012).
13 See Benjamin H. Barton, The ABA, the Rules, and Professionalism: The Mechanics of Self-Defeat and a Call for a Return to the Ethical, Moral, and Practical Approach to Ethics, 83 N.C. L. Rev. 411, 426–39 (2005).
14 Infra Sections II.B to II.D.
15 See Michael Ariens, Lost and Found: David Hoffman and the History of American Legal Ethics, 67 Ark. L. Rev. 571, 576–605 (2014) (tracing the evolution of legal ethics in America).
16 See infra notes 38–52 and accompanying text.
17 Id.
18 See Louis Parley, Brief History of Legal Ethics, 33(3) Fam. L.Q. 637, 637–38 (1999).
19 See Campbell, supra note 12, at 128–29.
20 James E. Moliterno, Lawyer Creeds and Moral Seismography, 32 Wake Forest L. Rev. 781, 787 (1997).
21 See Campbell, supra note 12, at 129.
22 Id. at 130.
23 Address by Hon. Edwin Baker Gager, M.A., The Duties of Attorney, 21 Yale L.J. 72, 74–75 (1911); see also Campbell, supra note 12, at 130 (“Legal ethics was defined as the personal ethos (or character) of the lawyer, and this character guided the lawyer’s decisions in a particular case. In fact, there was a belief that what was morally wrong could not be ethically or professionally right.”); see also Ariens, supra note 15, at 572–73 (“[W]hat is morally wrong, cannot be professionally right, however it may be sanctioned by time or custom.” (quoting David Hoffman, A Course of Legal Study, Addressed to Students and the Profession Generally 765 (2d ed. 1836))).
24 Ariens, supra note 15, at 594 (quoting Hoffman, supra note 23, at 747).
25 Campbell, supra note 12, at 130 (“[D]uring this era[,] legal ethics were viewed largely as a matter of personal and professional morality learned through a proper upbringing and enforced through a desire to remain in good standing with the legal guild.”).
26 Id. at 132. Adoption of the Canons was partially in response to state bar associations adopting “ethical codes that articulated existing professional norms” as early as 1887, when Alabama began the trend. See Moliterno, supra note 20, at 788–89.
27 Hepp v. Petrie, 200 N.W. 857, 859 (Wis. 1924) (referring to Canons of Ethics (Am. Bar Ass’n 1908)).
28 Campbell, supra note 12, at 132. Professor Campbell, quoting from a 1910 Comment in the Yale Law Journal article arguing that codes of ethics unfortunately are necessary, pointed out the thinking at the time: “[M]any young men come to the Bar lacking the benefits of sound home, social and religious training.” Id. at 132 n.190 (quoting Comment, Declaration Concerning Professional Ethics Recently Adopted by the State Bar Association of Connecticut, 19 Yale L.J. 571, 571–72 (1910)).
29 See id. at 133.
30 See id. As one law school dean noted in 1930, “It is submitted that there is much in the canons of professional ethics that can be called ‘ethics’ only at the expense of confusing ethics and morality on the one hand with approved standards of professional decorum on the other.” Charles H. Kinnane, Compulsory Study of Professional Ethics by Law Students, 16 A.B.A. J. 222, 223 (1930).
31 See Campbell, supra note 12, at 133.
32 Id. at 134.
33 Id.
34 Id.
35 Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 Law & Soc. Inquiry 677, 685 (Fall 1989) (recognizing criticism that “the Canons outlaw the tactics ‘Little Lawyers’ must use to draw up business (solicitation, personal loans to clients, fee-splitting, below-minimum fees, etc.), yet tolerate and thus legitimate the tactics of ‘Big Law Firms’ (intrafirm referrals and meeting prospective clients atthe country club)”).
36 See Don J. Young, Professionalism: The Necessity for Internal Control, 61 Temp. L. Rev. 205, 208 (1988) (“A consensus grew among the Bar, however, that the Canons were incomplete, unorganized, and failed to recognize the distinction between the inspirational and the proscriptive.”). As the ABA Commission on Professionalism recounted, “If the Bar was to rid itself of persons who victimized clients and abused the court system, both more formal disciplinary procedures and more precise statements of professional standards were required.” Comm’n on Professionalism, supra note 2, at 258.
37 Michael Ariens, The Agony of Modern Legal Ethics, 1970–1985, 5 St. Mary’s J. Legal Malpractice & Ethics 134, 137 (2014) (arguing that adoption of the Model Code of Professional Responsibility in 1969 was “the last act in a ‘golden age’ for American lawyers”).
38 Model Code of Pro. Resp. (Am. Bar Ass’n 1969) [hereinafter Model Code].
39 Ariens, supra note 37, at 137. Subsequently, most states adopted the Model Code without revision. Id.
40 See Model Code, supra note 38, prelim. statement (“The Model Code is designed to be adopted by appropriate agencies both as an inspirational guide to the members of the profession and as a basis for disciplinary action when the conduct of a lawyer falls below the required minimum standards stated in the Disciplinary Rules.”)
41 See id. prelim. statement.
42 Id. The concept of “professional responsibility” refers to concepts of ethics traditionally applied to the professions of medicine, law, and divinity, and its origin dates back to 1695. Professional Responsibility, Acad. Accelerator, https://academic-accelerator.com/encyclopedia/professional-responsibility (last visited June 25, 2023). Perhaps the first notable professional responsibility code—a professional code of medical ethics—was published by Thomas Percival around 1803. Id.
43 Campbell, supra note 12, at 135–36.
44 Schneyer, supra note 35, at 685 (claiming that the Model Code rules regarding “fees, advertising, and group legal services,” as well as “strict limits on representing clients with potentially conflicting interests,” favored the economic interests of attorneys).
45 Campbell, supra note 12, at 136. In the 1970s, “courts were becoming involved with issues of attorney regulation such as ‘minimum fees, advertising, solicitation, group legal services, and pre-trial publicity.’” Id. (quoting Robert J. Kutak, Model Rules of Professional Conduct: Ethical Standards for the ‘80s and Beyond, 67 A.B.A. J. 1116, 1116 (1981)). Emory Law School Dean L. Ray Patterson summed up the attitude of those advocating change: “[The time] has come to renounce completely the fiction that ethical problems for lawyers are matters of ethics rather than law.” L. Ray Patterson, Wanted: A New Code of Professional Responsibility, 63 A.B.A. J. 639, 639 (1977).
46 See Ariens, supra note 37, at 174–78 (providing an overview of the Watergate scandal and noting that within days after President Nixon’s resignation, the ABA’s House of Delegates approved a proposal requiring mandatory professional responsibility training at all ABA-approved law schools); Schneyer, supra note 35, at 688 (pointing out that the impetus for the Model Code was, in part, “a felt need to shore up the profession’s public image in the wake of the Watergate scandal”). The ABA requires that law schools offer a “course of at least two credit hours in professional responsibility that includes substantial instruction in rules of professional conduct, and the values and responsibilities of the legal profession and its members.” Standards and Rules of Procedure for Approval of Law Schools 2022–2023, std. 303(a)(1) (Am. Bar Ass’n 2022).
47 Ariens, supra note 37, at 154–55.
48 Model Rules, supra note 1
49 See Moliterno, supra note 20, at 793–94 (“Moral aspirations are largely absent from the 1983 Model Rules—the ethical culture of the legal profession now wholly embraced a pragmatic minimum-standards basis.”). Professor Ariens referred to adoption of the Model Rules as the “law of lawyering” supplanting an “ethic of lawyering.”,Ariens, supra note 37, at 135.
50 Compare Model Code, supra note 38, with Model Rules, supra note 1. This is despite the full title of the preamble to the Model Rules—”Preamble: A Lawyer’s Responsibilities”—and the numerous references in the preamble to such responsibilities, including that “[m]any of a lawyer’s professional responsibilities are prescribed in the Rules.” Model Rules, supra note 1, pmbl. cmt. [7] (emphasis added). Further, morality-based considerations are expressly referenced in the preamble and scope sections of the Model Rules. See infra notes 139–42 and accompanying text.
51 See Barton, supra note 13, at 438 (“[T]the [Canons] intermingled both broad ethical language and specific rules, the [Model Code] separated the ethical from the purely legal, and the [Model Rules] jettisoned the broadly moral or ethical in favor of black letter minimums of lawyer conduct.”); id. at 411 (asserting that the drafters of the Model Rules created a “quasi-criminal set of rules … focused on the minimum standards of lawyer conduct”).
52 Ctr. for Prof’l Responsibility, Alphabetical List of States Adopting Model Rules, Am. Bar Ass’n, https://www. americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_ list_state_adopting_model_rules/ (last visited June 25, 2023). Although not listed in the ABA listing, California adopted a version of the Model Rules in 2018. Current Rules of Professional Conduct, State Bar of Cal., https://
www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Current-Rules (last visited June 25, 2023). For a comparison between the Model Rules and the version adopted by each state, see Ctr. for Prof’l Responsibility, Jurisdictional Rules Comparison Charts, Am. Bar Ass’n [hereinafter Jurisdictional Rules Comparison Charts], https://www.americanbar.org/groups/professional_responsibility/policy/rule_charts/ (last visited June 25, 2023).
53 See Campbell, supra note 12, at 136–37. Today when lawyers speak of “ethical” conduct, the most likely connotation is the minimal behavior to avoid sanctions—not whether the conduct is morally right or wrong … . [T]he evolution from a consideration of ethos to the current reliance on minimum guidelines to avoid discipline has given the term “legal ethics” a uniquely narrow meaning, largely stripped of its moral context. Id. at 137.
54 Although some of the comments to the Model Rules refer to aspirational goals, those comments are meant only as “guides to interpretation” of the Rules, are not “authoritative,” and “do not add obligations to the Rules.” Model Rules, supra note 1, scope cmts. [14], [15].
55 Comm’n on Professionalism, supra note 2, at 259 (“[L]awyers have also tended to look at nothing but the rules; if conduct meets the minimum standard, lawyers tend to ignore exhortations to set their standards at a higher level.”).
56 See Ariens, supra note 37, at 166–67.
57 Id. (contrasting the view that a lawyer’s client is society itself with the view that a lawyer is required to “provide competent counsel for any person with a legitimate cause,” the so-called “lawyer for hire”); see also Moliterno, supra note 20, at 782 (“The lawyer’s role in the adversarial system by its nature puts the lawyer in the midst of strongly partisan and sometimes emotionally charged activity.”). Of note, establishment of an appropriate duty-to-client boundary in the Model Rules was a topic of great debate during development of the Model Rules. See Ariens, supra note 37, at 179–85.
58 These decisions focused primarily on lawyer advertising and price competition, which the legal profession traditionally outlawed because they were viewed as “not conducive to dignity.” Ronald D. Rotunda, Professionalism, Legal Advertising, and Free Speech in the Wake of Florida Bar v. Went for It, Inc., 49 Ark. L. Rev. 703, 713 (1997).
59 Goldfarb v. Va. State Bar, 421 U.S. 773 (1975).
60 Bates v. State Bar of Ariz., 433 U.S. 350 (1977).
61 See In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). Of note, allowing regulation of in-person solicitation for pecuniary gain “is the only circumstance addressed by the Court since [Bates v. State Bar of Arizona] where the state’s interest has been found to justify a ban on truthful, nondeceptive information conveyed by a lawyer to a potential client. Lawyer Advertising and Solicitation Chapter from Lawyer Advertising at the Crossroads, Am. Bar Ass’n, https://www.americanbar.org/groups/professional_responsibility/ resources/professionalism/crossroads/ (last visited June 25, 2023).
62 Zauderer v. Off. of Disciplinary Couns., 471 U.S. 626, 647 (1985). The Court also established a four-part test to determine whether commercial speech was protected, see Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 (1980); modified the test to be less restrictive, see Board of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989); and subsequently applied the test to lawyer advertising, see Zauderer, 471 U.S. 626.
63 Zauderer, 471 U.S. at 670.
64 Id. at 653.
65 See supra note 57 and accompanying text.
66 Comm’n on Professionalism, supra note 2, at 248. The Commission issued a report in 1986, two years after adoption of the Model Rules, which revealed that although attorneys were taking the ethical rules more seriously, they looked at nothing other than the required rules. Id. at 259. In response, the Commission recommended, among other things, the following: “The Bar should place increasing emphasis on the role of lawyers as officers of the court, or more broadly, as officers of the system of justice. Lawyers should exercise independent judgment as to how to pursue legal matters. They have a duty to make the system of justice work properly.” Id. at 264.
67 Ariens, supra note 37, at 186. Interestingly, the crusade also resulted in the creation of Rule 11 of the Federal Rules of Civil Procedure, which was designed to limit frivolous litigation through award of sanctions. Id. at 188. Instead, it had the unintended deleterious consequence of becoming a weapon of litigation—primarily through motions to disqualify opposing counsel—that increased litigation costs and “heightened the professionalism crisis.” Id. at 188–89.
68 Id. at 187. “This creed, a secular statement of faith, was perceived as applicable to all lawyers, and intended to remind lawyers that the profession would not countenance ‘abuses’ such as an ‘excessive zeal, a “win at any cost” mentality, “scorched earth” tactics and the apotheosizing of “playing hard ball.”“‘ Id. (quoting Report No. 2 of the Section of Tort and Insurance Practice, 113 A.B.A. Ann. Rep., no. 2, at 589, 589 (1988)).
69 This is based on an Internet search conducted in June 2023 of each state’s bar association website. It does not include those states that might count their “ethics” or “professional responsibility” MCLE training as a “professionalism course” for newly admitted attorneys. See infra note 73.
70 See Ariens, supra note 15, at 622–23 (discussing Arizona’s and Florida’s rules that make “unprofessional conduct”—defined as “substantial or repeated violations” of the attorney oath or the professionalism creed— subject to discipline).
71 See generally David W. Lannetti, The Harry L. Carrico Professionalism Course Celebrates Thirty Years, 67 Va.
Law. 32 (2018) (discussing the history of Virginia’s professionalism course).
72 This is based on an Internet search conducted in June 2023 of each state’s bar association website.
73 See Lisa A. Grigg, The Mandatory Continuing Legal Education (MCLE) Debate: Is It Improving Lawyer Competence or Just Busy Work?, 12 BYU J. Pub. L. 417, 417, 418 (1998) (noting that 9 states had MCLE programsm in 1980, 38 states had MCLE programs by 1998, and at least 21 bar associations offered “ethics” or “professional responsibility” MCLE training in 1998). Today only Maryland, Massachusetts, Michigan, and South Dakota have no MCLE program. Minimum CLE Hours by State, Lorman, https://www.lorman.com/Minimum-CLE-Hoursby- State (last visited June 25, 2023). Several states allow training in professionalism, civility, substance abuse, malpractice prevention, attorney-client relations, elimination of bias, mental illness awareness, or diversity/ inclusion issues to satisfy all or part of the “ethics” or “professional responsibility” MCLE requirement. Id.
74 See David A. Grenardo, Making Civility Mandatory: Moving from Aspired to Required, 11 Cardozo Pub. L. Pol’y & Ethics J. 239, 250 (2013) (pointing out that a Florida Supreme Court justice noted in 2012 that surveys have documented that the lack of professionalism was, and had been, a top concern “for years” and citing supporting surveys from 1991, 1996, and 1997).
75 See supra notes 19–21 and accompanying text.
76 See supra notes 2–11 and accompanying text.
77 Campbell, supra note 12, at 103.
78 See supra notes 66–74 and accompanying text.
79 Campbell, supra note 12, at 103–05.
80 Id. at 106–07.
81 Id. at 102 n.17, 106.
82 Id. at 106.
83 The number of states that have adopted civility codes—either as part of their principles of professionalism, based on the title of the document, or as separate documents—is the result of an Internet search conducted in June 2023 of each state’s bar association website. Professor Campbell identified ten “core concepts of civility,” which he “distilled from the unique codifications of guidelines of civility adopted by bar associations in thirty-two states.” Id. at 107. These core concepts are (1) “recognize the importance of keeping commitments and of seeking agreement and accommodations with regard to scheduling and extensions”; (2) “be respectful and act in a courteous, cordial and civil manner”; (3) “the obligation to be prompt, punctual, and prepared”; (4) “maintain honesty and personal integrity”; (5) “proper interactions with opposing counsel”; (6) “avoid actions taken merely to delay or harass”; (7) “ensure proper conduct before the court”; (8) “act with dignity and cooperation in pre-trial proceedings”; (9) “act as a role model to client and public and as a mentor to young lawyers”; and (10) “utilize the court system in an efficient and fair manner.” Id. at 107–28.
84 It appears, based on a review of state bar association websites in June 2023, two states have separate civility codes, and nine states combine their professionalism and civility codes; however, many principles of professionalism include provisions that clearly address civility. For a list of principles of professionalism and civility codes by jurisdiction, see Professionalism Codes, Am. Bar Ass’n, https://www.americanbar.org/groups/ professional_responsibility/resources/professionalism/professionalism_codes/ (last visited June 25, 2023).
85 See Keith A. Call, The Standards of Professionalism and Civility Grow Teeth. Let’s Eat, 29 Utah B.J. 40, 40 2016) (referring to a new comment to the Utah Rules of Professional Conduct providing that “[a]n egregious violation or pattern of repeated violations of the Standards of Professionalism and Civility may support a finding that the lawyer has [committed professional misconduct]”). Of course, “[s]anctioning lawyers for incivility runs the risk of chilling zealous advocacy.” Campbell, supra note 12, at 107.
86 Grenardo, supra note 74, at 252. As of 2013, states with civility pledges include Florida, New Mexico, South Carolina, and Utah. Id.
87 See generally Campbell, supra note 12; Grenardo, supra note 74; cf. Moliterno, supra note 20, at 796–808 (arguing that although lawyer creeds are laudable, they should be aspirational only). Professor Grenardo also provided “Suggested Mandatory Civility Rules.” Grenardo, supra note 74, at 267–71.
88 See Grenardo, supra note 74, at 253–59.
89 See infra note 96.
90 See infra note 98; see also Model Rules, supra note 1, scope cmt. 19 (“Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process.”).
91 See supra notes 66–74, 83–88 and accompanying text.
92 Ethics, Black’s Law Dictionary (11th ed. 2019) (defining ethics as, inter alia, “[a] system of moral tenets or principles”).
93 See Grenardo, supra note 74, at 246 (“[E]thics in the legal profession is today considered compliance with each state’s rules of professional conduct, which regulates attorney conduct.”); see also Legal Ethics, Black’s Law Dictionary (11th ed. 2019) (defining legal ethics as “[t]he standards of professional conduct applicable to members of the legal profession within a given jurisdiction”).
94 See supra notes 48–53 and accompanying text.
95 See supra note 46 and accompanying text.
96 According to the National Conference of Bar Examiners website, “the MPRE is required for admission to the Bars of all but two US jurisdictions (Wisconsin and Puerto Rico). (Note that Connecticut and New Jersey accept successful completion of a law school course on professional responsibility in lieu of a passing score on the MPRE.).” Multistate Professional Responsibility Examination, Nat’l Conf. of Bar Exam’rs, https://www. ncbex.org/exams/mpre/ (last visited June 25, 2023).
97 See Campbell, supra note 12, at 139 (“With specific ethical obligations in place, law schools began offering professional responsibility course in which the primary focus was on the ethical rules themselves—neglecting discussions of lawyers’ obligations to overarching societal interests.”). As several legal writing professors opined, “If courtesy, civility, and fair-dealing were emphasized and taught in law school, then conceivably the legal bar might have less need to inculcate civility and professionalism in practicing attorneys.” Donna C. Chin et al., One Response to the Decline of Civility in the Legal Profession: Teaching Professionalism in Legal Research & Writing, 51 Rutgers L. Rev. 889, 895–96 (1999); see also Benjamin V. Madison & Larry O. Natt Gantt II, The Emperor Has No Clothes, But Does Anyone Really Care? How Law Schools Are Failing to Develop Students’ Professional Identity and Practical Judgment, 27 Regent L. Rev. 339, 342 (2015) (discussing two comprehensive studies of law teaching that concluded that “the most glaring deficiency in law teaching is the failure to cultivate professional ethical identity and practical judgment”).
98 The ABA provides Model Rules of Professional Conduct, which all states and the District of Columbia have used as a starting point to develop their own rules of professional conduct. See supra note 52.
99 See supra note 73 and accompanying text.
100 See Model Rules, supra note 1, scope cmt. [16] (noting that the rules “do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules”).
101 See Hamilton, supra note 6, at 5 (“Although professionalism is a highly useful term to describe the important elements of an ethical professional identity, scholars so far have been unable to construct and agree upon a widely-accepted clear and succinct definition of ‘professionalism.’”).
102 -ism, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/ism#:~:text=%3A%20a% 20distinctive%20belief%2C%20cause%2C,%2Dism (last visited June 25, 2023).
103 Campbell, supra note 12, at 137.
104 See supra notes 2–4 and accompanying text.
105 See Pellegrino, supra note 3, at 169–71.
106 Campbell, supra note 12, at 138.
107 Id. After all, the Model Rules, which focus on legal ethics, include “professional conduct” in the title. See Model Rules, supra note 1.
108 Campbell, supra note 12, at 139 (quoting Walter E. Craig, Ethical Responsibilities of the Individual Lawyer, 17 Ark. L. Rev. 288, 289–90 (1963)); see also id. at 142–43 (“Professionalism addresses societal consciousness, and requires consideration of society’s interests or the integrity of legal institutions in the course of lawyer decision-making.”).
109 See id. at 139 (opining that attorneys must “assert leadership in the struggle to maintain the philosophy of freedom under law, respect for law and property rights, and respect for the inalienable rights of the individual
citizens” (quoting Craig, supra note 108, at 291)). As Professor Hamilton observed, “The lawyers who live the principles of professionalism create a public good for the profession as a whole—a type of shared property available to all licensed lawyers.” Hamilton, supra note 6, at 14.
110 See Campbell, supra note 12, at 140 (“[T]he right to practice in the legal profession entails an agreement between the lawyer and society where, in return for obtaining a license to practice law, lawyers agree to ensure that their actions serve the public good (even if those interests conflict with those of an individual client).”).
111 Id. at 141.
112 Id. (“In short, professionalism is defined not as what a lawyer must do (obey ethics rules while acting zealously on behalf of a client), but by what a lawyer should do to protect the integrity of the legal system.”). But not everyone agrees that morality and professionalism are coexistensive. For instance, Professor Campbell opined that professionalism is distinct from morality. Id. (“While morality focuses on a lawyer’s obligation to bring his personal beliefs of right and wrong to bear in his practice, professionalism is concerned with broader concerns of how the lawyer’s actions will impact the profession itself.”). According to Campbell, “morality represents a personal conscience, whereas professionalism represents a social conscience.” Id.
113 See, e.g., id. (“Prior studies have found it difficult to define the parameters of civility.”). One author claimed that when trying to describe uncivil behavior, it was similar to former U.S. Supreme Court Justice Potter Stewart’s assessment of pornography: “you know it when you see it.” Robert N. Sayler, Rambo Litigation: Why Hardball Tactics Don’t Work, 74 A.B.A. J. 79, 79 (1988) (apparently referencing Jacobellis v. Ohio, 378 U.S. 184, 197 (1963) (Stewart, J., concurring)).
114 Jayne R. Reardon, Civility as the Core of Professionalism, Am. Bar Ass’n (Sept. 18, 2011) https://www. americanbar.org/groups/business_law/resources/business-law-today/2014-september/civility-as-the-core-of-professionalism/.
115 See, e.g., Campbell, supra note 12, at 142 (“The legal profession is not well-served if civility continues to be a term whose meaning exists only in the eye of the beholder or whose tenets create obligations that are inconsistent with a lawyer’s preexisting professional obligations.”).
116 Gary L. Gassman & Elizabeth Olivera, Defining Civility as an Attorney, 49 The Brief 34, 35 (2019).
117 Campbell, supra note 12, at 142.
118 Gassman & Olivera, supra note 116, at 35–36.
119 See, e.g., Reardon, supra note 114 (“Civil behavior is a core element of attorney professionalism.”).
120 See, e.g., Campbell, supra note 12, at 142 (noting that “civility does not neatly fit within the definition” of professionalism).
121 Cf. Civility, Black’s Law Dictionary (11th ed. 2019) (defining civility as “[p]olitely circumspect behavior in personal interaction; propriety and courtesy in conduct; the absence of rudeness”).
122 Matthew 7:12 (Eng. Standard) (“So whatever you wish that others would do to you, do also to them … .”).
123 Robert Fulghum, All I Really Need to Know I Learned in Kindergarten (1989).
124 Revson v. Cinque & Cinque, 70 F. Supp. 2d 415, 434 (S.D.N.Y. 1999) (quoting Jerome J. Shestack, Defining Our Calling, 83 A.B.A. J. 8, 8 (1997)), rev’d in part, vacated in part sub nom. Revson v. Cinque & Cinque, P.C., 221 F.3d 71 (2d Cir. 2000).
125 Note, however, that extreme uncivil conduct can be sanctioned by courts. See infra notes 222–23 and accompanying text. Further, a minority of jurisdictions have adopted civility codes that expressly provide for discipline for egregiously uncivil conduct. See supra note 85 and accompanying text.
126 Campbell, supra note 12, at 142–43. 127 Id.
128 Anthony Kennedy, former U.S. Supreme Court Associate Justice, Speech at ABA Annual Meeting (1997).
129 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010) (quoting Cal. Att’y Guidelines of Civility & Professionalism § 1).
130 See Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995) (“The extension of normal courtesies and exercise of civility expedite litigation and are of substantial benefit to the administration of justice.”).
131 Grenardo, supra note 74, at 248.
132 See infra notes 165–81 and accompanying text.
133 See Sayler, supra note 113, at 80–81.
134 See id. (“A steady diet of hardball litigating cannot be good for a lawyer’s health and personal life.”).
135 See supra notes 66–74 and accompanying text.
136 See supra notes 2–4 and accompanying text.
137 See supra notes 66–74, 83–88 and accompanying text.
138 See supra text accompanying notes 112 (defining professionalism), 116 (defining civility).
139 See Model Rules, supra note 1, pmbl. cmt. [9].
140 Id. pmbl. cmt. 11; see also supra notes 2–11 and accompanying text. As Professor Hamilton noted, “Professionalism is the bridge from self-interest to a calling where the lawyer’s livelihood acquires meaning by serving the public purpose of justice which is central to a highly interdependent society.” Hamilton, supra note 6, at 14.
141 Model Rules, supra note 1, pmbl. cmt. [9] (emphasis added). As Professor Grenardo noted, “The highest form of zealous advocacy embodies civility; it is not devoid of civility.” Grenardo, supra note 74, at 275. In an apparent attempt to deemphasize zealous advocacy in the Model Rules, the term does not appear in any of the actual rules, unlike in the document it replaced, the Model Code. Compare Model Rules, supra note 1, r. 1.3, with Model Code, supra note 38, Canon 7.
142 Model Rules, supra note 1, scope cmt. [16]. A legal ethics opinion went a step further: “Legal ethics, like ethics generally, is fraught with gray areas that do not fit under an explicitly applicable Disciplinary Rule. In that circumstance, the ethical polestar is conduct that reflects credit on and inspires public confidence in and respect for the integrity of the legal profession.” Va. Legal Ethics Op. 1702 (1997).
143 See infra notes 144–96 and accompanying text.
144 Popularized by English logician and philosopher John Venn in the 1880s, a Venn diagram uses overlapping circles or other shapes to illustrate the logical relationships between two or more sets of items, typically to highlight how the items are similar and different. John Venn, Britannica, https://www.britannica.com/biography/ John-Venn (last visited June 25, 2023).
145 The terms are intended to be exclusive. For instance, uncivil conduct means conduct that is ethical, that is, in compliance with the Model Rules, and professional but that is not civil.
146 See supra notes 66–74, 78–81.
147 See Ill. Sup. Ct. on Professionalism, Survey on Professionalism: A Study of Illinois Lawyers 2021, at 3 (summarizing survey results regarding specific instances of incivility/unprofessionalism).
148 See supra text accompanying notes 93 (defining legal ethics), 116 (defining civility).
149 See Ill. Sup. Ct. on Professionalism, supra note 147, at 3.
150 See id.
151 See supra text accompanying notes 93 (defining legal ethics), 112 (defining professionalism).
152 See supra text accompanying note 116 (defining civility).
153 See supra text accompanying note 93 (defining legal ethics).
154 See Sayler, supra note 113, at 79 (outlining examples of “the Rambo Reflex or ‘hardball’ lawyering,” including making your opponent’s life miserable, shunning common courtesy and civility, manipulating facts, filing unnecessary motions, and using discovery for intimidation). Rambo is the last name of a fictional U.S. Green Beret veteran—portrayed as the ultimate military warrior, always willing and able to fight to the death—who is the protagonist in a John Morrell novel and was later portrayed by Sylvester Stallone in a series of motion pictures. John Rambo, Wikipedia, https://en. wikipedia. org/wiki/John_Rambo (last visited June 25, 2023).
155 Of course, the definition of undignified is subject to debate. Rotunda, supra note 58, at 734 (observing that “‘dignity’ is not a self-defining term”). What is undignified, like many aspects of professionalism—and civility, to a lesser degree—is subject to individual judgments. See infra notes 240–44 and accompanying text for a discussion of professionalism and civility in the context of lawyer advertising.
156 Steven M. Gursten, The Worst Commercials for Personal Injury Lawyers, MichiganAutoLaw (July 1, 2010), https://www.michiganautolaw.com/blog/2010/07/01/the-worst-commercials-for-personal-injury-lawyers/.
157 Annals of Bad Taste Lawyer Advertising, Mich. State Bar Blog (Aug. 28, 2013), https://sbmblog.typepad. com/sbm-blog/2013/08/annals-of-bad-taste-lawyer-advertising.html.
158 See supra notes 60–63 and accompanying text.
159 See Model Rules, supra note 1, r. 7.1 (discussing lawyer advertising).
160 See supra text accompanying notes 112 (defining professionalism), 116 (defining civility); see also Rotunda, supra note 58, at 703 (noting that “[o]pponents of [undignified] advertising speculate and postulate that advertising leads to a worsened public image” and discussing Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995), in which the U.S. Supreme Court, for the first time, “upheld advertising restrictions based on the need to protect the dignity of lawyers”).
161 See Model Rules, supra note 1, r. 4.4 (“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”). As the rule commentary notes, an attorney’s duty beyond notifying the sender is unclear and may vary by jurisdiction. Id. r. 4.4 cmt. [2] (“Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of [the Model Rules], as is the question of whether the privileged status of a document or electronically stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person.”).
162 Compare Va. Rule of Prof’l Conduct r. 4.4(b) (requiring the recipient attorney to “immediately terminate review or use of the [communication], promptly notify the sender, and abide by the sender’s instructions to return or destroy the [communication]) with D.C. Legal Ethics Op. 256 (1995) (allowing the recipient attorney to retain and use communications that were inadvertently sent).
163 See, e.g., Resolution Tr. Corp. v. First of Am. Bank, 868 F. Supp. 217, 220 (W.D. Mich. 1994) (opining, in an inadvertent document disclosure case, that “[w]hile lawyers have an obligation to vigorously advocate the positions of their clients, this does not include the obligation to take advantage of a clerical mistake in opposing counsel’s office where something so important as the attorney-client privilege is involved”).
164 These include areas (4), (5), (6), and (7) of the Venn diagram.
165 Model Rules, supra note 1, r. 4.2.
166 Id. r. 4.2 cmt. [3] (emphasis added).
167 See, e.g., Psychology behind Hanging Up on Someone, PsychMechanics (Jan. 9, 2023), https://www. psychmechanics.com/psychology-behind-hanging-up-on-someone/ (noting that “hanging up the phone on someone abruptly is extraordinarily rude and disrespectful”).
168 737 S.E.2d 914 (Va. 2013).
169 Id. at 915. The defense attorney claimed that she did not know who the caller was until midway through the telephone conversation and, hence, it was not clear exactly how long the defense attorney continued the conversation once she knew the identity of the plaintiff. Id. at 915–16.
170 Id. at 915.
171 Id.
172 Id. at 916.
173 Id.
174 Id. Of note, the state bar disciplinary committee assessed the lowest available sanction at the time, a “dismissal de minimis.” Id. Despite the phraseology, which could connote exoneration, this actually was a form of punishment; however, due to the confusion it caused, that sanction subsequently was eliminated. Peter Vieth, VSB Drops ‘Confusing’ Ethics Penalty, Va. Laws. Weekly (June 24, 2019), https://valawyersweekly.com/2019/06/24/ vsb-drops-confusing-ethics-penalty/.
175 In Virginia, circuit courts are the trial courts of record. See Circuit Court, Va.’s Jud. Sys., https://www.vacourts. gov/courts/circuit/home.html (last visited June 25, 2023).
176 Zaug v. Va. State Bar, 737 S.E.2d 914, 916 (Va. 2013). In Virginia, an attorney who is subject to a disciplinary proceeding may demand that further disciplinary proceedings be conducted by a three-judge circuit court. Va. Code Ann. § 54.1-3935 (2023).
177 Id.
178 Id. at 918.
179 Id. The court further noted that it was “construing Rule 4.2 to advance behavior that is both professional and ethical.” Id.
180 See supra notes 174–76 and accompanying text.
181 The plaintiff argued, unsuccessfully, that such an interpretation would create an exception that would obscure “an otherwise bright-line rule of ethical conduct.” Zaug, 737 S.E.2d at 918–19.
182 Because professionalism and civility—at least as defined in this article—are viewpoint-driven, a private uncivil interaction of which the public becomes aware can be both unprofessional and uncivil. See supra text accompanying notes 112 (defining professionalism), 116 (defining civility).
183 This example is based on a hypothetical available as part of the 2022–2023 Harry L. Carrico Professionalism Course, a mandatory course provided by the Virginia State Bar to all new Virginia attorneys. For information about the course, see Harry L. Carrico Mandatory Professionalism Course, Va. State Bar, https://vsb.org/Site/_ VSB/Events/Event_display.aspx?EventKey=04302023PC (last visited June 25, 2023).
184 See Model Rules, supra note 1, r. 1.3 cmt. [1] (“A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”).
185 Id. r. 1.3. One state, Virginia, addresses this issue directly: “A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 [confidentiality of information] and Rule 3.3 [candor to the tribunal].” Va. Rules of Prof’l Conduct r. 1.3(c). This is distinguishable from a situation where Roy realized—on his own—that he needed additional time to complete his brief and requested a continuance from the court before the jurisdictional deadline.
186 Additionally, it would be unprofessional to the extent that the public discovered that attorneys generally place their personal friendships above their duty to their clients.
187 See Model Rules, supra note 1, r. 4.1 cmt. [1] (“A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false.”).
188 See id. r. 3.4(d).
189 See supra note 182.
190 This is the center area of the Venn diagram, that is, the area contained within all three circles.
191 An ambulance chaser is a derogatory term that refers to a lawyer soliciting potential clients at a disaster site and arises from the stereotype of a lawyer who follows an ambulance to the hospital emergency room to find clients. See Ambulance Chaser, Black’s Law Dictionary (11th ed. 2019) (defining ambulance chaser as “[a] lawyer who approaches victims of accidents in hopes of persuading them to hire the lawyer and sue for damages; esp., a lawyer who uses undue pressure to persuade an accident victim to sue with a contingent fee for the lawyer”).
192 Model Rules, supra note 1, r. 7.3(b) (requiring that, in most cases, “[a] lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain”). Solicitation is defined as a communication that is “directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, orreasonably can be understood as offering to provide, legal services for that matter.” Id. r. 7.3(a).
193 Of note, some jurisdictions use a modified version of Model Rule 7.3 that does not prohibit such in-person solicitations, apparently concluding that such a limitation would be an inappropriate free-speech restriction. See Va. R. Prof’l Conduct r. 7.3; see also Changes in Solicitation Laws Allow Personal Injury Lawyers to Reach Out in Charlottesville, Virginia, The Warren Firm, https://warren-law.com/blog/changes-in-solicitation-lawsallow- personal-injury-lawyers-to-reach-out-in-charlottesville-virginia/ (last visited June 25, 2023) (discussing the Virginia rule).
194 See What Is Ambulance Chasing and Why Is It Illegal?, Goodman Acker (Apr. 17, 2021), https://www. goodmanacker.com/blog/ambulance-chasing-illegal-activity-guide/#:~:text=Accident%20victims%20are %20in% 20the,care%20or%20proper%20legal%20representation (“Accident victims are in the midst of a crisis and may make rushed decisions that aren’t in their best interest.”). As the U.S. Supreme Court opined, the “potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured or distressed person.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 465 (1978).
195 See What Is Ambulance Chasing and Why Is It Illegal?, supra note 194 (referring to “unscrupulous tactics” of
attorneys, resulting in “subpar legal representation”).
196 See Model Rules, supra note 1, r. 3.3(a)(3) (prohibiting an attorney from “offer[ing] evidence that the lawyer knows to be false”).
197 For a comparison of the Model Rules and the version of those rules adopted by each state, see Jurisdictional Rules Comparison Charts, supra note 52.
198 See supra notes 48–52 and accompanying text.
199 See supra notes 2–11 and accompanying text.
200 This is a variation of the adage commonly attributed to author Sherrilyn Kenyon, “Just because you can doesn’t mean you should.”
201 See, e.g., Model Rules, supra note 1, pmbl. cmt. [9]
202 Id. r. 1.3 cmt. [1] (citation omitted).
203 See Section III.A.
204 See also supra notes 48–52 and accompanying text.
205 See, e.g., Va. Legal Ethics Op. 1702 (1997) (“Legal ethics, like ethics generally, is fraught with gray areas that do not fit under an explicitly applicable Disciplinary Rule. In that circumstance, the ethical polestar is conduct that reflects credit on and inspires public confidence in and respect for the integrity of the legal profession.”).
206 The Model Rules, like previous ABA codes, do not establish a clear line of demarcation between an attorney’s duty of client advocacy and a lawyer’s obligation to ensure justice, although the line adopted by the Model Rules arguably lies closer to the former. A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. Model Rules, supra note 1, pmbl. cmt. [8].
207 Id. r. 1.3 cmt. [1] (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”). Of note, the initial draft of the Model Rules, which was circulated for discussion, avoided use of zeal or zealous in describing client representation. Ariens, supra note 37, at 180. 208 Model Rules, supra note 1, pmbl. cmt. [9].
209 See Kathleen P. Browe, A Critique of the Civility Movement: Why Rambo Will Not Go Away, 77 Marq. L. Rev. 751, 754–55 (1994); see also Campbell, supra note 12, at 143 (noting that some attorneys accused of incivility justified their behavior by claiming that “what is incivility in the eyes of one person is zealous advocacy in the eyes of another”).
210 Model Rules, supra note 1, pmbl. cmt. [1] (emphasis added). Professor Hamilton described this sentence as “ask[ing] each lawyer, as a member of the legal profession, to hold in proper tension [these] sometimes conflicting roles.” Hamilton, supra note 6, at 7.
211 See Model Rules, supra note 1, pmbl. cmt. [9].
212 See Nicola A. Boothe-Perry, Professionalism’s Triple E Query: Is Legal Academia Enhancing, Eluding, or Evading Professionalism?, 55 Loy. L. Rev. 517, 523–24 (2009).
213 See Model Rules, supra note 1, r. 1.3(1). As one court noted, “the idea that there is a conflict between zealous advocacy and ethical and professional behavior is completely false. There is no conflict between zealous advocacy and professional conduct.” In re Moncier, 550 F. Supp. 2d 768, 807 (E.D. Tenn. 2008), aff’d sub nom. In re Moncher, 329 F. App’x 636 (6th Cir. 2009).
214 In most cases, there is no conflict with the disciplinary mandates, so demonstrating professionalism and civility is simply the right thing to do.
215 See Nasir Hussain, For Lawyers, Kindness Is More Than a Virtue; It’s a Requirement, Am. Bar Ass’n (Aug. 30, 2017), https://www.americanbar.org/groups/litigation/committees/consumer/practice/2017/for-lawyers-kindness-is-more-than-a-virtue-its-a-requirement/.
216 See Samuel C. Stretton, A Client Has No Authority to Dictate Whether a Lawyer May Grant Opposing Counsel’sRequest for an Extension, LAW (Oct. 22, 2013), https://www.law.com/thelegalintelligencer/almID/12026244936 39/.
217 See id.
218 See Grenardo, supra note 74, at 275.
219 See supra notes 66–74, 83–88 and accompanying text (discussing principles of professionalism and civility codes).
220 See Gassman & Olivera, supra note 116, at 37 (“Clients, judges, and opponents will notice the difference between true zealous advocacy that is tempered and reasonable and attorneys who are difficult, rude, inconsiderate, overly critical, condescending, or standoffish.”).
221 See id. (“Attorneys who are perceived as kind, bright, considerate, and reasonable while being zealous advocates will reap the benefits of such conduct with their reputation in the legal community and at the courthouse.”).
222 See id. (“[I]n many states, judges are inclined to give various sanctions to attorneys who clearly act without civility or professionalism.”).
223 See id. at 37–38 (discussing cases involving sanctions—some involving suspension of an attorney’s license to practice law—related to “spilling coffee in the direction of opposing counsel” at a deposition, “frivolously ma[king] 600 objections in one deposition,” making “false accusations and carr[ying] out an unhinged attack on an expert witness,” “‘inappropriate litigation behavior’ on multiple occasions,” and “rude and antagonistic behavior throughout a civil case”); see also Campbell, supra note 12, at 100 (“Citing the need for a return to ‘civility,’ courts have become increasingly willing to sanction lawyers solely for being uncivil.”).
224 For a discussion of this “social contract” between attorneys and the public, see Hamilton, supra note 6, at 4–5.
225 See Model Rules, supra note 1, pmbl. cmt. [9] (“These principles 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 towards all persons involved in the legal system.”).
226 An example principle of professionalism/civility is the following: “I will conduct myself with respect to opposing counsel in a manner that displays Courtesy and Candor in the pursuit of the truth and I will endeavor to cooperate in all respects not inconsistent with my client’s interests.” Attorney’s Creed of Professionalism, Baton Rouge Bar Ass’n, https://www.brba.org/Images/Forms%20and%20Applications/creed.pdf (last visited June 25, 2023).
227 An example principle of professionalism/civility is the following: “Treat everyone as I want to be treated – with respect and courtesy.” Principles of Professionalism for Virginia Lawyers, Va. Bar Ass’n, https://www. vba.org/page/principles_professionalism#:~:text=Act%20at%20all%20times%20with,for%20future%20 generations%20of%20lawyers (last visited June 25, 2023).
228 An example principle of professionalism/civility is the following: “I will refrain from filing or pursuing frivolous motions, claims, causes of action or defenses.” Attorney’s Creed of Professionalism, supra note 226.
229 An example principle of professionalism/civility is the following: “In litigation proceedings, I will agree to reasonable requests for extensions of time or for waiver of procedural formalities when the legitimate interests of my client will not be adversely affected.” Id. In some jurisdictions, attorneys are required to meet and confer in good faith—and stating as much in a related court pleading—before asking a court to intervene. See, e.g., Fed. R. Civ. P. 37(a)(1); Va. Sup. Ct. R. 4:15(b).
230 See Model Rules, supra note 1, r. 1.3.
231 See id. (requiring an attorney to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished”).
232 Example principles of professionalism/civility include the following: “I will advise my client that Civility and Courtesy are not be equated with weakness,” Attorney’s Creed of Professionalism, supra note 226; “Explain to clients that my courteous conduct toward others does not reflect a lack of zeal in advancing their interests, but rather is more likely to successfully advance their interests,” Principles of Professionalism for Virginia Lawyers, supra note 227; “Avoid reciprocating any unprofessional conduct by opposing counsel, explaining to my clients that such behavior harms rather than advances the clients’ interests,” id.; “Explain to my clients that they should also act with respect and courtesy when dealing with courts and other institutions,” id.
233 Example principles of professionalism/civility include the following: “I will not denigrate the Court in private conversations with my client”; “I will be mindful of the need to protect the image of the legal profession in the eyes of the public … .” Attorney’s Creed of Professionalism, supra note 226.
234 See Section IV.C. regarding self-improvement to enhance the legal profession.
235 RXL, https://www.reputationxl.com/quotes/the-way-to-gain-a-good-reputation-is-to-endeavor-to-be-whatyou- desire-to-appear/ (last visited June 25, 2023).
236 Ian H. Fisher & Eugene E. Endress, Reputation and Relationships, Am. Bar Ass’n (Mar. 29, 2017), https:// www. americanbar.org/groups/litigation/pages/reputation_and_relationships/#:~:text=An%20attorney’s%20 reputation%20is%20his,work%2C%20and%20act%20with%20integrity (“An attorney’s reputation is his or her most valuable asset.”).
237 See David W. Lannetti & Jennifer L. Eaton, The Untapped Potential of Attorney Mentorship to Increase Job Satisfaction, Promote Civility, and Improve the Legal Profession, 34 J. Civ. Litig. 497, 507–08 (2022–2023) (discussing the evolution from the lawyer apprenticeship model to modern mentorship relationships).
238 See Catherine Gage O’Grady, Behavioral Legal Ethics, Decision Making, and the New Attorney’s Unique Professional Perspective, 15 Nev. L.J. 671, 681 (2015) (“A new attorney will naturally be most inclined to look to the behavior of other attorneys to learn what is expected or appropriate in the work environment.”).
239 See Lannetti & Eaton, supra note 237, at 530 (noting that “those mentors who had a positive mentee experience arguably become more passionate and effective mentors as they ‘pay it forward’ to the next generation of attorneys”).
240 See supra notes 59–64 and accompanying text.
241 See ABA Aspirational Goals for Lawyer Advertising (Am. Bar Ass’n 1988), https://www.americanbar.org/ groups/professional_responsibility/resources/professionalism/professionalism_ethics_in_lawyer_advertising/ abaaspirationalgoals/ (“[W]hen advertising[–]though not false, misleading or deceptive[–]degenerates into undignified and unprofessional presentations, the public is not served, the lawyer who advertised does not benefit and the image of the judicial system may be harmed.”).
242 See id.
243 The American Bar Association published in 1988 Aspirational Goals for Lawyer Advertising “to provide suggested objectives which all lawyers who engage in advertising their services should be encouraged to achieve in order that lawyer advertising may be more effective and reflect the professionalism of the legal community. See id. Among other things, the document points out that “the use of inappropriately dramatic music, unseemly slogans, hawkish spokespersons, premium offers, slapstick routines or outlandish settings in advertising does not instill confidence in the lawyer or the legal profession and undermines the serious purpose of legal services and the judicial system.” Id.
244 See id. (“Dignified lawyer advertising tends to inspire public confidence in the professional competence and ability of lawyers and portrays the commitment of lawyers to serve clients’ legal needs in accordance with the ethics and public service tradition of a learned profession.”).
245 For example, as a young attorney, future President John Adams defended British soldiers accused of a murder that occurred during a riot in Boston on March 5, 1770. Digital Collection, John Adams and the Boston Massacre Trial of 1770, Libr. of Cong., https://www.loc.gov/collections/john-adams-and-the-boston-massacretrial- of-1770/about-this-collection/#:~: text = As%20noted%20in%20the%202008,Boston%20on%20March %205%2C% 201770 (last visited June 25, 2023).
246 See Model Rules, supra note 1, r. 1.16.
247 See id.
248 See generally Serena Stier, Legal Ethics: The Integrity Thesis, 52 Ohio St. L.J. 551, 556–60 (1991).
249 Model Rules, supra note 1, pmbl. cmt. 2.
250 Id. pmbl. cmt. [9].
251 See Model Code, supra note 38, DR 2-110.
252 Model Rules, supra note 1, r. 1.16(b)(4) (permitting withdrawal if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement”). One scholar characterized this as “a remarkable concession to lawyers’ sensibilities.” Schneyer, supra note 35, at 736.
253 Model Rules, supra note 1, r. 1.16(c).
254 Id. r. 6.2 cmt. (“A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant.”).
255 Schneyer, supra note 35, at 736 (quoting ABA Ctr. for Pro. Responsibility, The Legislative History of the Model Rules of Professional Conduct: Their Development in the ABA House of Delegates 103 (Am. Bar Ass’n 1987)).
256 See, e.g., 7 Best Articles on Self Development for Lawyers, Law Firm Suites (Sept. 4, 2020), https://lawfirmsuites. com/2020/09/04/7-best-articles-on-self-development-for-lawyers/ (“Constantly improving your skills as a lawyer and entrepreneur is essential to the growth and success of your practice.”).
257 See, e.g., 10 Important Lawyer Skills and How to Develop Them, The Lawyer Portal (Apr. 6, 2023), https:// www.thelawyerportal.com/blog/law-skills-develop/.
258 As discussed above, most states have annual MCLE training—including professional responsibility or legal ethics courses—to ensure attorneys are competent and professional. See supra note 73 and accompanying text.
259 See, e.g., Mandatory Continuing Legal Education Requirements, regul. 103, Va. State Bar, https://vsb.org/Site/Site/01_About/RulesRegulations/Mandatory_Continuing_Legal_Education_Regulations.aspx#:~:text=Regulation%20103%3A%20Standards%20for%20Approval,the%20provisions%20of%20Regulation%20105 (last visited June 25, 2023).
260 Continuing Legal Education (CLE), State Bar of Cal., https://www.calbar.ca.gov/Attorneys/MCLE-CLE/ CLE #:~:text=Continuing%20Legal%20Education%20(CLE)%20offers,or%20expand%20their%20legal%20expertise (last visited June 25, 2023) (noting that MCLE programs assist attorneys to “stay current with new lawsor expand their legal expertise”).
261 See supra note 97 and accompanying text.
262 See Grigg, supra note 73, at 430–31 (opining that the public perception of the legal profession could be positively impacted by “providing] better training for attorneys through MCLE programs aimed at professionalism and ethics”). Grigg suggested topics that could directly address professionalism and civility: a “lawyer’s responsibility as an officer of the court, responsibility to treat fellow lawyers and clients with respect,[responsibility] to avoid misuse and abuse of discovery and litigation, [responsibility] to protect the image of the profession, [obligation] to fulfill public service responsibility, and [responsibility] to be informed about methods
of dispute resolution.” Id. at 431.
263 See Lannetti & Eaton, supra note 237, at 510–12. Principles of professionalism generally recognize a lawyer’s obligation of mentorship. See, e.g., Principles of Professionalism for Virginia Lawyers, supra note 227 (documenting an attorney’s responsibility to “[a]ct as a mentor for less experienced lawyers and as a role model for future generations of lawyers”).
264 See Lannetti & Eaton, supra note 237, at 511.
265 See id.
266 See id.
267 See id.
268 See id.
269 See id.
270 The “Justice Gap” is “the difference between the civil legal needs of impoverished Americans and the resources available to meet those needs.” David W. Lannetti & Jennifer L. Eaton, Sparking a Movement: A Coordinated, Bottom-Up Approach to Increase Voluntary Pro Bono Service and Mend the Justice Gap, 25 Richmond Pub. Int. L. Rev. 1, 2 (2022).
271 See generally Lannetti & Eaton, supra note 270. The Model Rules provide that an attorney has a “professional responsibility” to provide at least 50 hours of pro bono service per year. Model Rules, supra note 1, r. 6.1. Additionally, many principles of professionalism recognize a pro bono service requirement. See, e.g., Attorney’s Creed of Professionalism, supra note 226 (“I will be mindful that the law is a learned profession and that among its desirable goals are devotion to public service, improvement of administration of justice, and the contribution of uncompensated time and civic influence on behalf of those persons who cannot afford adequate legal assistance.”).
272 Lannetti & Eaton, supra note 270, at 12–16.
273 See id. at 27–31.
274 See id.
275 See What Does Pro Bono Work Mean to Attorneys?, Thomas Reuters (Sept. 20, 2022), https://legal. thomsonreuters.com/blog/what-does-pro-bono-work-mean-to-attorneys/.
276 See supra note 2 and accompanying text.
277 See Keith Lee, Why You SHOULD Join a Bar Association (A Response to Carolyn Elefant Above the Law (Mar. 14, 2014), https://abovethelaw.com/2014/03/why-you-should-join-a-bar-association-a-response-to-carolyn-elefant/
278 William Shakespeare, The Taming of the Shrew act 1, sc. 2, l. 285.
279 See Lee, supra note 277 see also Lannetti & Eaton, supra note 237, at 509 (noting that “[a]ttorneys who know each other are less likely to be rude and inconsiderate to one another while working together on cases or in the courtroom”).
280 See Vision, Mission and Strategic Goals, Am.Inns of Cts., https://www.innsofcourt.org/AIC/About_Us/ur_ ision_and_Mission/AIC/AIC_About_Us/Vision_Mission_and_Goals.aspx?hkey=27d5bcde-8492-45da-aebd- 0514af4154ce (last visited June 25 2023). The vision of the American Inns of Court is “[a] legal profession and judiciary dedicated to professionalism, ethics, civility, and excellence,” and its mission is to “inspire the legal community to advance the rule of law by achieving the highest level of professionalism through example, education, and mentoring.” Id.
281 See The American Inns of Courts Member Experience, Am. Inns of Cts., https://www.innsofcourt.org/AIC/ About_Us/The_Member_Experience/AIC/AIC_About_Us/Member_Experience_Pages/Member_Experience. aspx?hkey=7ea75127-c039-4805-8b5c-216cebb1f132 (last visited June 25, 2023); see also Lannetti & Eaton, supra note 237, at 509 (pointing out that the Inns of Court program “has demonstrated that mentorship and fellowship enhance familiarity and reduce uncivil behavior, at least among the law students, professors, attorneys, and judges who participate”).
282 See Lannetti & Eaton, supra note 237, at 508–10.
283 Eric Williamson, Donald Lemons ‘76: Remarks on Becoming Virginia Supreme Court Chief Justice, Univ. Va.
Sch. Law (Jan. 9, 2015), https://www.law.virginia.edu/news/2015_spr/lemons.htm.
284 Sandra Day O’Connor, Professionalism, 76 Wash. U.L.Q. 5, 8 (1998).
