by Robert S. Bernstein, Esq.
*This article previously appeared in the January/February/March 2013 issue of Commercial Law World, the official publication of the Commercial Law League of America.
Most articles on Ethics and Professionalism tend to be about the former (where there are enforceable rules) as opposed to the latter (which is often a matter of opinion). To be sure, some of the Rules are about how one interacts with others (e.g. Rule 4.1 Truthfulness in Statements to Others, or Rule 4.3 Dealing with Unrepresented Persons). Professionalism is more about how lawyers conduct themselves when the Rules would permit them to behave badly.
As examples, when addressing the Court, the Rules allow us to sit at counsel table (rather than standing) or to mumble over our name (rather than speaking clearly) when entering our appearance at the start of a hearing or argument We are allowed, but should we?[related]
Certainly, each judge has her personal preferences or idiosyncrasies and we should do our level best to know those before venturing into a proceeding in her courtroom. There are, in addition, those general principles of professionalism that we should try to follow wherever we are. Here are but a few that I think should be on every list:
1. When in court, imagine that you are addressing the U.S. Supreme Court, dressed in “morning clothes.” Okay, maybe that is extreme, but just think how you would feel as you stand to address the Court. Aside from the probably nervousness, there would be a certain air of formality and grandeur. You would probably stand straighter and speak more clearly just because of the place and the dress. You also might tend to be better prepared because one simply wants to feel more proper and controlled in this atmosphere. Think about that next time you are in court. Chances are the Judge won’t mind at all.
2. Stand when you address the Court. Period. Whether there is a podium or not, I have only once been asked to sit while addressing the Court and that was when the table microphones weren’t working well enough to pick up voices of people standing.
3. Figure out ways to call your opponent names without actually calling her names. “If counsel knew the facts, she certainly would not have made the inaccurate assertions in her Motion” is much more professional than “counsel lied in her pleading.” Even the ubiquitous “disingenuous” is readily heard as “lying” by most of us. Those who use it just think it sounds more professional. It doesn’t.
4. In court or in meetings with non-lawyers, don’t use buzzwords unless you are really sure that everyone knows what they mean. Telling someone that you are going to “drag them in on a 2004” probably doesn’t have the same impact as saying that you are going to “compel them to attend and be examined under Rule 2004.”
5. There is rarely a need to yell. Yes, we all try to intimidate our adversary (or his client), but it can often be done with actions and with words, rather than with volume. Effective presentations often include fluctuations in tone and volume, but that is different from yelling. There is rarely a need to yell.
6. Be on time. If something will prevent your being on time, give reasonable notice.
There are a number of bar associations and courts that have codes of professionalism or civility. Look at some of them. Think about them. I think you will feel better about your interactions with others. I also believe that Judges will appreciate your manner, which might just lead to his listening more attentively (or favorably) to your argument.