Maintaining and Improving the Standards of Professionalism
The privilege of practicing law carries with it the obligation to not only maintain our legal system, but to
constantly improve the legal system so that it continues to meet the ever changing demands of our society.
Dedication to service of the organized bar and vigilance regarding the competence and integrity of those who
administer our system of justice assures efficient and responsive justice for all members of our society.
1. What is “Professionalism?”
Barrie Althoff, Director of Lawyer Discipline and Chief Disciplinary Counsel,
Washington State Bar Association since 1994 stated:
The professional [legal ethics] rules are merely the basement level, the lowest
common denominator, of acceptable lawyer conduct. Lawyers who consider
compliance with them to be complete fulfillment of legal ethics are the
equivalent of the cave dwellers in Plato’s The Republic who sincerely believe
that mere shadows are reality. But believing it so does not make it so. Barrie
Althoff, Big Brother is Watching: Discipline for “Private” Conduct, 2000
Symposium Issue of THE PROFESSIONAL LAWYER of the ABA Center for Professional
Responsibility 87 (2000).
Professionalism goes beyond observance of the legal profession’s ethical rules
and serves the best interests of clients and the public in general; it fosters
respect and trust among lawyers and between lawyers and the public, promotes the
efficient resolution of disputes, and makes the practice of law more enjoyable
and satisfying. Oregon Supreme Court/Oregon State Bar Joint Commission on
Professionalism (est., 1994). ABA Center for Professional Responsibility, A
Guide to Professionalism Commissions, January, 2001.
As Joe Condo observed in the film Professionalism Among Lawyers in Virginia
(2003), professionalism is demonstrated when lawyers act with decency, dignity,
courage and perspective. As an advocate, they can argue more effectively without
belittling their opponent; they can question adverse parties and witnesses
without personally attacking them. There is a line that can be drawn between
being adversarial and being combative.
As another commentator observes: “there is no inconsistency between civility and
zealous, effective advocacy. In fact, quite the contrary, advocacy which is both
civil and professional is by far the most effective.” Joseph W. Ryan, Jr.,
Things Your Mother Should Have Taught You, 23 ABA Litigation News, No. 4 (May
1998). Professionals act with courage by admitting to the court that they don’t
know the answer instead of bluffing; by representing unpopular clients; and, by
refusing to take positions or actions they find repugnant merely because the
client insists and is paying them. Professionals have perspective when they do
not become personally involved in their clients’ causes.
2. What Standards or Principles Embody Professionalism?
In 2008, the Supreme Court of Virginia endorsed the “Principles of
Professionalism” adopted by the Virginia Bar Association. Those
principles, stated in the first person admonish the lawyer:
In my conduct toward everyone with whom I deal, I should:
• Remember that I am part of a self-governing profession, and that my
actions and demeanor reflect upon my profession.
• Act at all times with professional integrity, so that others will know
that my word is my bond.
• Avoid all bigotry, discrimination, or prejudice.
• Treat everyone as I want to be treated – with respect and courtesy.
• Act as a mentor for less experienced lawyers and as a role model for
future generations of lawyers.
• Contribute my skills, knowledge and influence in the service of my
• Encourage those I supervise to act with the same professionalism to
which I aspire.
In my conduct toward my clients, I should:
• Act with diligence and dedication – tempered with, but never compromised
by, my professional conduct toward others.
• Act with respect and courtesy.
• Explain to clients that my courteous conduct toward to others does not
reflect a lack of zeal in advancing their interests, but rather is more
likely to successfully advance their interests.
In my conduct toward courts and other institutions with which I deal, I
• Treat all judges and court personnel with respect and courtesy.
• Be punctual in attending all court appearances and other scheduled
• Avoid any conduct that offends the dignity or decorum of any courts or
other institutions, such as inappropriate displays of emotion or
unbecoming language directed at the courts or any other participants.
• Explain to my clients that they should also act with respect and
courtesy when dealing with courts and other institutions.
In my conduct toward opposing counsel, I should:
• Treat both opposing counsel and their staff with respect and courtesy.
• Avoid ad hominem attacks, recognizing that in nearly every situation
opposing lawyers are simply serving their clients as I am trying to serve
• Avoid reciprocating any unprofessional conduct by opposing counsel,
explaining to my clients that such behavior harms rather than advances the
• Cooperate as much as possible on procedural and logistical matters, so
that the clients’ and lawyers’ efforts can be directed toward the
substance of disputes or disagreements.
• Cooperate in scheduling and discovery, negations, meetings, closing,
hearings or other litigation or transactional events, accommodating
opposing counsels’ schedules whenever possible.
• Agree whenever possible to opposing counsels reasonable requests for
extensions of time that are consistent with my primary duties to advance
my client’s interests.
• Notify opposing counsel of any schedule changes as soon as possible.
• Return telephone calls, e-mails and other communications as promptly as
I can, even if we disagree about the subject matter of the communication,
resolving to disagree without being disagreeable.
• Be punctual in attending all scheduled events.
• Resist being affected by any ill feelings opposing clients may have
toward each other, remembering that any conflict is between the clients
and not between the lawyers.
3. Why should we be concerned about
Our system of justice can ill‑afford to devote scarce resources to supervising
matters that do not advance the resolution of the merits of a case; nor can
justice long remain available to deserving litigants if the costs of litigation
are fueled unnecessarily to the point of being prohibitive.... Whether the
increased size of the bar has decreased collegiality, or the legal profession
has become only a business, or experienced lawyers have ceased to teach new
lawyers the standards to be observed, or because of other factors not readily
categorized, we observe patterns of behavior that forebode ill of our system of
justice. Dondi Properties Corp. v.
Commerce Savings & Loan Ass’n, 121
F.R.D. 284, 286 (N.D. Tex. 1998).
b. Richard A. Gilbert, then Chairperson of the Hillsborough County
Bar Association's Professional Conduct Committee, Tampa, Florida, wrote in 1991
about the threat that lawyer misconduct poses for the role of the legal
believe that relations between lawyers have so deteriorated that our profession
nears a crisis‑‑one that not only implicates how we deal with each other but
threatens our usefulness to society, the ability of our clients to bear the cost
of our work, and the essential values that mark us as professionals. Some
perceive abusive conduct as gaining new adherence cloaked in the mantle of
forceful advocacy. They perceive that clients are best served by the
intimidation of opponents, a relentless refusal to accommodate, and the use of
tactics that impose escalating expenses on an adversary.
4. What are the causes of the decline in professionalism?
One of the most cited reasons for the decline in professionalism is the belief,
thought to be shared among many lawyers, that Canon 7’s duty of “zealous
representation” is a requirement carried over into the ABA Model Rules of
Professional Conduct, a version of which has been adopted in most states,
including Virginia. The duty of “zealous representation” was purposefully
omitted from Model Rule 1.3 and Virginia’s Rule 1.3.
The phrase “zealous advocacy” has been replaced with the concept of “diligence,”
largely because lawyers frequently invoke the phrase “zealous advocacy” to
justify unprofessional behavior. A frequently cited court order issued by
Illinois Circuit Court Judge Richard Curry states:
Zealous advocacy is the buzz word which is squeezing decency and civility out of
the law profession. Zealous advocacy is the doctrine which excuses, without
apology, outrageous and unconscionable conduct, so long as it is done ostensibly
for a client, and, of course, for a price. Zealous advocacy is the modern day
plague which weakens the truth finding process and makes a mockery of the
lawyers' claim to officer of the court status." Hanna v. American National Bank
& Trust Co. of Chicago, No. 87CH4561, (Cir. Ct., Cook County, Ill.).
5. We are more than legal technicians that carry our our client’s
2.1 provides that in counseling a client “a lawyer may refer not only to law but
other considerations such as moral, economic, social and political factors that
may be relevant to the client’s situation.” In other words, as lawyers, we are
more than merely legal technicians. Comment  under this rule states that a
lawyer is not expected to give advice until asked by the client: “[h]owever,
when a lawyer knows that a client proposes a course of action that is likely to
result in substantial adverse legal, moral or ethical consequences to the client
or to others, the duty [of communication] to the client under Rule 1.4
may require that the lawyer act if the client’s action is related to the
6. Hardball Tactics Hurt the Profession.
Stanford legal ethics scholar Deborah L. Rhode describes the motivation of many
hard-ball lawyers to engage in zealous representation: “In a market-based
system of legal representation, it is convenient to leave no stone unturned for
clients who pay by the stone.” She describes hardball lawyering as:
A mind-set that litigation is war and that
describes trial practice in military terms.
A conviction that it is invariably in your
interest to make life miserable for your opponent.
A disdain for common courtesy and civility,
assuming that they ill-befit the true warrior.
A wondrous facility for manipulating facts
and engaging in revisionist history.
A hair-trigger willingness to fire off
unnecessary motions and to use discovery for intimidation rather than
An urge to put the lawyer on center stage
rather than the client or his cause.
Deborah L. Rhode,
An Adversarial Exchange on Adversarial Ethics: Text,
Subtext and Context, 41 J. Legal Educ. 29 at 37 (1991).
Washington, D.C. trial lawyer, Robert Saylor stated that “Rambo” trial tactics
or hardball lawyering is “like pornography, you know it when you see it.”
Saylor also said “I never lost to a Rambo style litigator. Robert N. Saylor,
Rambo Litigation: Why Hardball Tactics Don’t Work, ABA Journal (March 1,
1988) at 79.
Egregious Acts of Unprofessional Conduct May Form the Basis for
For example, under Rule 3.4 (j), a lawyer may not “file a suit,
initiate criminal charges, assert a position, conduct a defense, delay a
trial, or take other action on behalf of the client when the lawyer knows or
when it is obvious that such action would serve merely to harass or
maliciously injure another.”
Similarly, Rule 4.4 states that “[i]n representing a client, a
lawyer shall not use means that have no purpose other than to embarrass,
delay, or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.”
The Preamble of the Virginia Rules of Professional Conduct opens with the
statement: “[a] lawyer is a representative of clients or a neutral third party, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”
2 A lawyer should render at least two
percent per year of the lawyer’s professional time to pro bono publico
legal services. Pro bono publico services include poverty law, civil
rights law, public interest law, and volunteer activities designed to
increase the availability of pro bono legal services. Rule 6.1(a).
3. Every lawyer, regardless of professional prominence or
professional work load, has a personal responsibility to provide legal
services to those unable to pay, and personal involvement in the problems
of the disadvantaged can be one of the most rewarding experiences in the
life of a lawyer. The Council for the Virginia State Bar urges all
Virginia lawyers to contribute a minimum of two percent of their
professional time annually to pro bono services. Pro bono legal services
consist of any professional services for which the lawyer would ordinarily
be compensated, including dispute resolution as a mediator or third party
neutral. Cmt. , Rule 6.1.
C. Improper Criticism of Judges
A lawyer should demonstrate respect for the legal
system and for those who serve it, including judges, other lawyers and
public officials. While it is a lawyer's duty, when necessary, to challenge
the rectitude of official action, it is also a lawyer's duty to uphold legal
process. Preamble., Va. Rules of Prof. Conduct.
RULE 8.2 Judicial Officials
A lawyer shall not make a statement that the lawyer knows
to be false or with reckless disregard as to its truth or falsity concerning
the qualifications or integrity of a judge or other judicial officer.
Rationale or Policy in Support of Rule:
Lawyers, correctly or otherwise, are assumed to have special knowledge about
the quality of the legal system and the actors within it. Consequently, the
assessments of lawyers “may carry disproportionate weight,” Hazard & Hodes,
Judicial and Legal Officials, The Law of Lawyering §§ 63 (3rd Ed. 2004).
“Members of the public,” similarly notes another commentary, “may regard
lawyers as possessed of special knowledge about the qualifications and
integrity of judicial officers and, hence, may give stronger weight to
lawyer criticism than to comments of nonlawyers,” A Lawyer’s Statements
Concerning a Judicial Officer, Restatement of the Law (Third) Governing
Lawyers §114 (2000). “Precisely because lawyers are perceived to have
special competence in assessing judges, the public tends to believe what
lawyers say about judges, even when lawyers speak inappropriately or make
claims about which they are uncertain.” Essay, Three Discussions of Legal
Ethics, 126 U. Pa. L. Rev. 452 (1977).
A unique concern about judicial criticism is that the
judiciary cannot defend itself. “Special protection for judges can be
justified. Judges are constrained from public response to charges made
against them out of a proper concern not to involve judges in public
controversy. Restatement of the Law (Third) Governing Lawyers, supra at
The judiciary cannot respond to, much less defend itself
against scurrilous charges which, but for rules of professional conduct, are
made without consequence. “Codes of judicial conduct typically constrain
judicial response to public comment. It is therefore doubly important that
lawyers conscientiously strive to keep their negative comments about judges
both accurate and germane. As a supplement to this self-control, the rules
of professional conduct, such as ABA Model Rule of Professional Conduct 8.2,
have traditionally placed some limits on a lawyer’s right of public
criticism of judges and other public officials.” Hazard & Hodes, supra at
1. Anthony v. Virginia State Bar, 270 Va. 601,
621 S.E. 2d 121 (2005). Derogatory statements about judges in pleadings
filed by lawyer were not protected speech. Lawyer publicly reprimanded for
violating Rule 8.2. See also Pilli v. Virginia State Bar, 269 Va. 391, 611
S.E. 2d 389 (2005) (statements made by lawyer were not expressions of pure
opinion and violated Rule 8.2; 90-day suspension based on prior disciplinary
record); and Taboada v. Daly Seven, Inc. 272 VA 211, 636 S.E. 2d 889 (2006)
(lawyer’s intemperate attack of court’s decision in petition for rehearing
justified one-year suspension of lawyer’s privilege to practice before
Virginia Supreme Court).
2. Kentucky Bar Association v. Waller, 929 S.W.2d
181 (Ky. 1996) (lawyer characterized judge as lying, incompetent asshole in
court-filed papers and received a six-month suspension).
3. In Re Topp 129 Idaho 414, 925 P.2d 1113
(1996). In proceeding in which attorney is accused of making statements
critical of judge, attorney’s First Amendment interests must be balanced
against protecting integrity of judicial system. Lawyer made statements to
media that a judge’s decision was motivated by political concerns. Lawyer
received public reprimand.
4. In re McClellan, 754 N.E.2d 500 (Ind. 2001).
Attorney publicly reprimanded for filing a petition for rehearing
criticizing the court's decision as being “like a bad lawyer joke” and
encouraging lawyers to lie. The lawyer “supports a negative perception of
lawyers generally and impugns the integrity of the judges who decided that
5. Hanson v. Superior Court, 109
Cal.Rptr.2d 782 (Cal. Ct. App. 3d Dist. 2001). Court upheld direct contempt
finding against attorney who told jury that his criminal defense client did
not receive a fair trial. Court found that statement impugned the integrity
of the judge, because indicated that judge had failed to provide defendant
with fair trial.
6. In re Dinhofer, 690 N.Y.S.2d 245 (N.Y.A.D. 1
Dept. 1999). Attorney suspended for 90 days for telling a judge she was
“corrupt” and her proceedings were “a sham” in a phone conference.
7. Office of Disciplinary Counsel v. Gardner, 793
N.E.2d 425 (Ohio 2003). In this case, the respondent was suspended for six
months for filing a motion for reconsideration that accused the Ohio Court
of Appeals of being dishonest and ignoring well-established law.
Respondent stated, among other things: “any fair-minded judge” would have
been “ashamed to attach his/her name” to the decision; that the judges did
not give “a damn about how wrong, disingenuous, and biased its opinion is;”
that the judges had “distorted the truth;” and that “wouldn’t it be nice if
this panel had the basic decency and honesty to write and acknowledge these
simple unquestionable truths in its opinion? Would writing an opinion that
actually reflected the truth be that hard?” Id. at 427.
The Ohio Supreme Court, in rejecting respondent’s argument
that the First Amendment protected his speech, relied upon the U.S. Supreme
Court’s decisions in In re Sawyer, 360 U.S. 622 (1959) and Gentile v. Nevada
Bar, 501 U.S. 1030 (1991) to hold that an attorney’s free speech rights were
extremely circumscribed, and that lawyers in pending cases are subject to
ethical restrictions on speech that an ordinary citizen would not be. Id.
at 428. The Court said, “[T]he First Amendment does not insulate an
attorney from professional discipline even for expressing an opinion, during
court proceedings, that a judge is corrupt when the attorney knows that the
opinion has no factual basis or is reckless in that regard.” Id.
8. After an evidentiary hearing in which Respondent and his
client were sanctioned, Moseley also wrote a letter to the AAA, stating that the
circuit court judge who had adjudicated the evidentiary hearing "was caught
engaging in serious misconduct" and that the circuit court judge was the subject
of an investigation by JIRC. Moseley sent an email to colleagues in which he
stated that the monetary sanctions award entered by the circuit court judge was
"an absurd decision from a whacko judge, whom I believe was bribed," and that he
believed that opposing counsel was demonically empowered. A three-judge court
found that Moseley had violated Rules 3.3(a)(1), 3.4(e), 3.4(j), 4.1(a), 8.2 and
8.4(a), (b), and (c). The panel suspended Moseley’s license to practice law for six months. The Va. S. Ct. affirmed. Moseley v. Virginia State Bar, 280 Va. 1 (2010).
9. Attempting to have a circuit judge disqualified, Respondent
made several remarks that were found to have violated Rule 8.2:
- “I don’t feel that you’re appropriate to hear any cases that I might be. .
- “It makes me feel comfortable for you not to hear any jury trial that I got
against any of my clients.”
- Respondent accused the judge of harboring animosity toward Respondent and
implied it would cause the judge to treat the defendant unfairly.
- Respondent suggested that the judge was biased for the Commonwealth in
A three-judge court found Respondent violated Rules 3.5(f)(conduct intended to
disrupt a tribunal) and Rule 8.2 (attacking qualifications or integrity of a
judge). Virginia State Bar v. Curtis Tyrone Brown, CL09-5166 (Dec. 15, 2009).
Respondent defaulted on his appeal by failing to timely file the notice of
appeal with the trial court. Curtis Tyrone Brown v. Virginia State Bar, Record
No. 100491 (May 10, 2010)
Improving the Profession
As a public citizen, a lawyer should seek improvement of
the law, the administration of justice and the quality of service rendered
by the legal profession. As a member of a learned profession, a lawyer
should cultivate knowledge of the law beyond its use for clients, employ
that knowledge in reform of the law and work to strengthen legal education.
A lawyer should be mindful of deficiencies in the administration of justice
and of the fact that the poor, and sometimes persons who are not poor,
cannot afford adequate legal assistance, and should therefore devote
professional time and civic influence in their behalf. A lawyer should aid
the legal profession in pursuing these objectives and should help the bar
regulate itself in the public interest. Preamble, Virginia Rules of
Support of the Organized Bar
The legal profession is largely self-governing. Although
other professions also have been granted powers of self-government, the
legal profession is unique in this respect because of the close relationship
between the profession and the processes of government and law enforcement.
This connection is manifested in the fact that ultimate authority over the
legal profession is vested largely in the courts.
To the extent that lawyers meet the obligations of their
professional calling, the occasion for government regulation is obviated.
Self-regulation also helps maintain the legal profession's independence from
government domination. An independent legal profession is an important force
in preserving government under law, for abuse of legal authority is more
readily challenged by a profession whose members are not dependent on
government for the right to practice.
The legal profession's relative autonomy carries with it
special responsibilities of self-government. The profession has a
responsibility to assure that its regulations are conceived in the public
interest and not in furtherance of parochial or self-interested concerns of
the bar. Every lawyer is responsible for observance of the Rules of
Professional Conduct. A lawyer should also aid in securing their observance
by other lawyers. Neglect of these responsibilities compromises the
independence of the profession and the public interest which it serves.