Wisconsin Lawyer: Ethics: Polite Behavior: An Unwritten Ethics Rule:

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Format: MM/DD/YYYY
    June
    03
    2020

    Ethics: Polite Behavior: An Unwritten Ethics Rule

    Tempers might be especially short in the practice of law because of the pandemic, but lawyers still are expected to behave professionally.

    Dean R. Dietrich

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    Question

    There is a great deal of talk in the practice of law about improving professionalism and courtesy toward other people. Are there requirements under the Rules of Professional Conduct that apply?

    Answer

    This is a question that is often raised as lawyers deal with what appears to be a loss of common courtesy or professionalism in the practice of law. This is particularly troublesome as lawyers face a “new normal” in their work when pandemic-related shutdowns ease and people try to return to what used to be normal.

    Dean R. DietrichDean R. Dietrich, Marquette 1977, of the law firm of Dietrich VanderWaal Law Group SC, Wausau, is past chair of the State Bar Professional Ethics Committee.

    I have written about this topic in the past, and since then, nothing has changed – there are no ethics rules that specifically speak to professionalism and courtesy toward others. SCR 20:8.4(g) provides that it is a violation of the rules for a lawyer to “violate the attorney’s oath.” Part of the attorney’s oath, which is found in SCR 40.15, provides that a lawyer must “abstain from offensive personality.” Although some cases have been brought over the years regarding a violation of the attorney’s oath, it is very infrequent that a grievance based on such a violation is filed with the Office of Lawyer Regulation.

    A recent decision from the Supreme Court of New York’s appellate division highlighted some considerations. A New York lawyer was disciplined for communicating directly with an opposing party even though the lawyer knew that the opposing party was represented. The lawyer was charged with violating the Rules of Professional Conduct that prohibit communicating with an opposing party when the lawyer knows the party to be represented by counsel (in Wisconsin, SCR 20:4.1) and engaging in conduct designed to embarrass or burden a third party while representing a client (in Wisconsin, SCR 20:4.2). The lawyer was suspended for one year because of the inappropriate conduct.

    The lawyer stated that he acted contrary to the rules because he was frustrated by the failure of the opposing party’s lawyer to be responsive to him. The court acknowledged that the lawyer was attempting to zealously represent his client but did not accept as justification for the behavior the argument that he acted out of frustration. The court previously had publicly reprimanded and admonished the lawyer, and the court took into account this prior discipline when imposing the one-year suspension.

    Lawyers need to continue to engage in professional behavior and avoid the type of disparaging comments and conduct that are exemplified in this New York case. Everyone should be sensitive to this as lawyers begin to work in new-normal settings.

    The court acknowledged that the lawyer was attempting to zealously represent the client but did not accept as justification for the behavior the argument that he acted out of frustration.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.




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