How lawyers behave toward each otherand their clientsin practice and in theory, is a perennial subject of discussion. Even though the Rules of Professional Conduct (RPC), adopted in New York in 2009, removed the obligation of “zealous representation”and omit any use of the word “zealous”many lawyers continue to believe that their fundamental obligation to their clients remains that of “zealousness.” Unfortunately, they sometimes interpret that to mean overly aggressive conduct. As a result, bar associations, encouraged by the courts, have repeatedly tried to establish standards of conduct, separate and apart from the RPC, urging lawyers to behave with greater civility in the context of their law practice. Programs on the subject of “professionalism” that bar associations often sponsor are likewise intended to cajole lawyers into improving their behavior toward one another.
Some time ago, I wrote an article in this column, “Standards of Civility,” dated Nov. 11, 1997, arguing that efforts to legislate civility in the legal profession were unwarranted, unenforceable and bound to fail. Why? Because, as noted then, it remains clear that lawyers who behave civilly are more likely to attain successful outcomes for their clients, and ultimately for themselves. In other words, there should be no need to mandate civility. Simply put, the practical reasons for behaving professionally trump any need for special language. In addition, and as discussed in the 1997 article in connection with the Code of Professional Responsibility, the Rules of Professional Conduct adopted in New York in 2009 directly address overly aggressive behavior in numerous ways, including Rule 3.1 (“Non-meritorious Claims and Contentions”), 3.2 (“Delay of Litigation”), 3.3 (“Conduct Before a Tribunal”), 3.4 (“Fairness to Opposing Party and Counsel”), and 8.4(d) (“engage in conduct that is prejudicial to the administration of justice”).
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