The Finer Points of Professionalism

By: Kristi Bergemann Rothell
May 2016

We, as lawyers, are no doubt familiar with some of the basic requirements of professionalism. They are not much different from some of the most basic societal expectations that we have been learning since preschool: be nice, tell the truth, and arrive on time.

However, some of the requirements of the various documents prescribing professionalism and civility in our practice are perhaps less obvious. These are the requirements that necessitate attention and vigilance in our daily routines. However, even many, if not all, of these resemble behavior that is expected or appreciated in our lives beyond work.

Standards of Professional Courtesy and Civility (Palm Beach County Bar Association)

• When scheduling depositions or hearings: “sufficient time should be reserved to permit a complete presentation by counsel for all parties.” (I. Scheduling, ¶ 2; see also Professionalism Expectations, 3.12). It is not simply a matter of getting a motion set for hearing so that our client’s position may be considered. We must put ourselves in the shoes of opposing counsel and consider how long he or she will need to respond and convey the position of his or her client as well. Be considerate and share.

• “Attorneys…should impress upon their clients and witnesses the need to be courteous and respectful and not rude or disruptive with the court/tribunal, opposing counsel, parties and witnesses.” (III. Conduct, ¶ 2; see also Professionalism Expectations, 5.1). We are the company we keep. Not advising our clients about appropriate behavior, especially crucial because they are often highly emotionally invested in their cases, casts both them and us in a negative light. Plus, very seldom is crude behavior likely to get positive results. It is not enough to be nice – we must expect, inspire, and help others to be nice as well.

• “Attorneys and their staff should…b) be selective in inquiries posed to judicial assistants as their time and resources are limited, and c) familiarize themselves with the court’s administrative orders, local rules and each judge’s published standing orders, practices and procedures.” (III. Conduct, ¶ 5; see also Professionalism Expectations, 4.1). These two go hand in hand. Only if the answer is not available in the court’s published procedures, or we have an extremely unique circumstance, should we need to contact a judicial assistant. We must do our homework.

• “Where revisions are made to an agreement or other document, attorneys should point out, redline or otherwise highlight any such additions, deletions or modifications for opposing counsel.” (IV. Candor, ¶ 6; see also Professionalism Expectations, 2.8). We cannot simply feel accomplished when we have completed revising a document, such as a proposed order or settlement agreement, in which opposing counsel has a say. We may be busy and need to move on to the next task, but opposing counsel will likely be busy when reading the revised document as well. Provide a roadmap to streamline review and ensure accuracy. We would want to be shown the same courtesy – “do unto others as you would have them do unto you.”

Professionalism Expectations (The Florida Bar)

• “A lawyer must devote professional time and resources and use civic influence to ensure equal access to our system of justice.” (1. Commitment to Equal Justice, 1.12). We are not lawyers only when we are being lawyers. We are lawyers in all aspects of our lives and must always responsibly promote the profession and its laudable goals. It can be as simple as taking the time to explain the judicial system and the challenges it faces to a friend or neighbor. Be proud and have passion.

• “A lawyer should use formal letters or e-mails for legal correspondence and should not use text messages to correspond with a client or opposing counsel unless mutually agreed.” (2. Honest and Effective Communication, 2.6). Appearances matter and we should want to appear professional. Text messages may seem perfunctory and as if we cannot devote sufficient time to draft more formal correspondence. Plus they pose technical problems, such as auto-correct changing our intended text (perhaps to something quite undesirable) and difficulty saving to a client file. Take the time.

• “A lawyer must not inappropriately communicate with a party represented by a lawyer, including not responding ‘reply all’ to e-mails.” (2. Honest and Effective Communication, 2.11). The devil is in the details. We probably never thought of this as one of the many potential dangers of “reply all.” Nonetheless, it is best to not include others on e-mails to clients to avoid inadvertent disclosures of confidential or sensitive information and to minimize the risk of “reply all” errors by others. Pause, take care, and be detail-oriented.

• “A lawyer should counsel a client or prospective client, even with respect to a meritorious claim or defense, about the public and private burdens of pursuing the claim as compared with the benefits to be achieved.” (7. Independence of Judgment, 7.2). Winning is not everything. Seeing a case to a successful settlement or resolution by trial often literally entails blood, sweat, and tears for all involved. Clients will be required to give up their time (and often the associated income) to attend depositions and hearings, feel the stress of being called upon to testify, and place their resources at stake to pay their attorney’s fees (and perhaps those of the opposing party if they lose). Have the hard conversation up front. This will allow us and our happy clients to fully appreciate victory, whether small or great.

Kristi Bergemann Rothell is an associate with Methe & Rockenbach, P.A. in West Palm Beach.