Avoid Unprofessionalism by Keeping Cool!
Lawsuits can get ugly fast, not just for clients, but even their attorneys. And while arguing over the kids or who will get the house, it’s easy to get heated and say something that will come back to haunt you later. That holds true no matter what kind of case you are dealing with. Building good relationships with clients, peers, and judges is a necessary part of the practice of law.
Unprofessionalism is a serious enough issue that the Colorado Bar Association even has a Peer Professionalism Assistance Group which includes among its services “Communicate with opposing counsel upon request of the calling attorney to discuss and help resolve professionalism issues.” No matter how stressful or acrimonious a case can get, it’s important to always be careful what you say, whether you are a client, who could be hurt in court, or an attorney, who could face state bar discipline for misconduct if he is too unprofessional.
Colorado Rules of Professional Conduct
The Colorado Rules of Professional Conduct require attorneys to be professional, and explicitly prohibit unprofessional conduct by lawyers, including slurs based upon a variety of grounds. Colo. RPC 8.4(g) says that Colorado attorneys shall not:
“engage in conduct, in the representation of a client, that exhibits or is intended to appeal to or engender bias against a person on account of that person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, whether that conduct is directed to other counsel, court personnel, witnesses, parties, judges, judicial officers, or any persons involved in the legal process.”
Unprofessionalism = Attorney Misconduct
One Colorado lawyer recently learned the importance of professionalism the hard way when he was disciplined by the Colorado Supreme Court. People v. Robert E. Abrams.1People v Robert E. Abrams, 19 PDJ 036 (2020).
This attorney disciplinary case stems from a 2015 construction litigation lawsuit. This is hardly an area of law known for being explosive, but the attorney’s unprofessional conduct really stands out.
The attorney in question was hired to represent a couple against their former home builder after a contract dispute. While litigating the dispute, the attorney had a rather explosive hearing, tangling with the judge on several issues. After the hearing, the attorney sent emails to the client describing the judge in incredibly offensive and bigoted terms, including:
- Referring to the judge as “an ass”
- Saying he was a fat kid who become “a big fat judge” trying to get even
- “Maybe he just hates Jews.”
- “gay, fat fag”
Anyone who has been part of a hotly contested hearing knows that the experience can be gruelling. And perhaps the person has even harbored (on the inside!) unpleasant thoughts about others involved. But most people keep it to themselves. It’s called having a filter!
The attorney-client relationship deteriorated, and the attorney withdrew. The clients ultimately filed a complaint over billing disputes, and as often happens, once the attorney was under a microscope, the other attorney misconduct, including those gems of unprofessionalism, came to light.
Colorado Bar Sanctions Attorney Over Bias & Slurs
The attorney’s defense was that growing up in Chicago, to survive his ethos was “you come on me and I’m coming right back.” He applied what he called his “Chicago street sense” to his life and career. While that may work with certain politicians, it did not impress the state bar.
The attorney’s other defense, freedom of speech under the First Amendment, also went nowhere.
After a two-day contested hearing, the disciplinary board ruled against the attorney. Its ruling makes clear that while courts cannot regulate private thoughts of attorneys, it can and will regulate their professional conduct. And the Rules of Professional Conduct regulate attorney behavior and maintain the integrity of the legal profession.
The attorney was given a three months suspension, stayed upon the completion of an eighteen month probation.
Why Attorney Professionalism?
In family law cases, emotions between clients often run high – both because they involve two people who previously had an intimate relationship, and because cases involve children. One of our jobs, as family law attorneys, is to temper emotional responses with sound legal advice or guidance.
At a bare minimum, the attorneys should not add fuel to the fire by making things worse with our own emotions. We’re human – we have feelings, but as professionals, we have to be level-headed, act without prejudice or bias towards anyone in the case, and treat all parties to a case with respect. Failing to do so is not just unprofessional, it’s bad lawyering.
When an attorney shows poor judgment in a case, this unprofessionalism inhibits settlement. While there are times it is appropriate to dig in your heels and refuse to compromise, those times should be based upon a legitimate dispute, not emotions. And while it’s uncertain whether a client has a First Amendment Right to badmouth the other side (although it’s never advisable), an attorney certainly cannot badmouth the judge or opposing counsel.
If an attorney is constantly rude, makes derogatory comments about other attorneys or parties, or otherwise makes prejudice or bias obvious, it can make a case downright impossible to resolve without a contested hearing – something that costs time and money for a client.
When choosing or working with an attorney, it’s important to pay attention to what your attorney says because your attorney’s words, in and out of the courtroom, can have consequences. At Graham.Law we take professionalism seriously. Our attorneys will not badmouth the attorney on the other side, the judge, nor use hyperbole in pleadings (“this is the most ludicrous claim I’ve seen in my career…”). You are hiring a professional, and our job is to litigate, not ratchet up the tension.
Unprofessionalism is also Judicial Misconduct
The judge sitting on the bench is also a lawyer, and expected to be guided by an even more stringent set of professional conduct and disciplinary rules, the Colorado Code of Judicial Conduct and the Colorado Rules of Judicial Discipline. While complaints against judges are rare (and also taken with a great big grain of salt, as litigation often results in one party being unhappy with the outcome, and often the judge), they do happen.
One California family law judge who recently crossed the line was disciplined for his unprofessionalism – read about this judicial misconduct in our blog post.