Rules of Professional Conduct

The trend to regulate or force civility in the legal profession represents an effort to regulate not just morality, as our criminal laws basically do, but manners. This proposed amendment to the rule goes further than just trying to regulate or force good manners, however. It actually puts a person’s profession and very livelihood at risk for fear of not demonstrating good or proper manners. I think we have to be careful going down these roads where we give a select few the power to determine unknown and undefined standards, such as what manners are appropriate and which ones aren’t. Who is really capable of deciding such things for all the rest of us? And who is really capable of deciding whether we don’t have a right to make a living on account of not demonstrating sufficient good manners?
A second observation I have is that forcing civility has created a new breed of younger attorneys who are offended by everything, offended in fact by merely disagreeing with them. These people hold the prospect of a bar complaint over the other attorney’s head for allegedly not being “civil,” or not being “civil enough.” Rules giving birth to these kinds of young lawyers do not, in my opinion, “serve the administrative of justice.” Quite the opposite. The cure becomes worse than the disease.
I don’t like the effort to regulate manners because it is the beginning of a journey down the road of regulating behavior, which sows the seeds for a more concerted effort to regulate speech and thought.

I am not inclined to support the proposed amendment to Rule 8.4 (the new paragraph 3a). The proposed amendment begins by stating the obvious — that “the Standards of Professionalism and Civility
. . . are intended to improve the administraton of justice.” This is so clear as to need no restatement. More troublesome, however, is the second sentence of the amendment: “An egregious violation or a pattern of repeated violations of the Standards of Professionalism and Civility may support a finding that the lawyer has violated paragraph (d).” Paragraph (d) provides that a lawyer may not “engage in conduct that is prejudicial to the administration of justice.” I think this second sentence contains an implication that some or all of the Standards of Professionalism and Civility are less important than others, and it is anybody’s guess what is meant by the word “egregious” in the context of the proposed amendment. Paragraph (d), all by itself, is sufficient to put lawyers on notice that violations of the Standards of Professionalism and Civility may be punishable by the rule. Adding the further elucidation in the new paragraph 3a simply muddies the water and would allow attorneys to argue about what is “egregious” or not. That definitional defense would always be available to the attorney with our without the amendment. In short, paragraph 3a is unnecessary and could hamstring the efforts of OPC to enforce the Rules of Conduct in the based upon violations of the Standards of Professional Conduct.