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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-5158" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2020/07/Professionalism-300x200.jpg" alt="" width="300" height="200">We&rsquo;ve written a lot over the past six years about the Rules of Professional Conduct, and for good reason.&nbsp; The lawyer conduct rules represent a floor:&nbsp; when your conduct sinks below the floor, you can merit professional discipline.&nbsp; But there are other norms and mores in our legal community, namely standards of professionalism.&nbsp; As the Preamble of the Model Rules <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope/">notes</a>, the Rules &ldquo;do not, ... exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.&rdquo;
Without providing a basis for discipline; norms of professionalism nonetheless express a common understanding within the legal community about how a &ldquo;professional&rdquo; lawyer acts and the ideals that lawyers should aspire to uphold.
Last week, the Sixth Circuit Court of Appeals provided a good lesson on the value of professionalism as applied to briefs submitted to the court.&nbsp;&nbsp;In an&nbsp; <a href="https://filehost.thompsonhine.com/uploads/Bearden_v._Ballad_Health_9752.pdf">opinion</a> recommended for publication, the court affirmed dismissal of a Clayton Antitrust Act complaint based on plaintiffs&rsquo; lack of standing, and in the process called plaintiffs&rsquo; counsel to task for numerous over-the-top insults directed at the opposing parties in briefs.
The court cited some examples of statements in briefs that plaintiffs&rsquo; counsel filed, including that:
<ul>
<li>one defendant &ldquo;surrendered to [a co-defendant], much in the manner Marshal Petain surrendered France to Adolph Hitler.&rdquo;;</li>
<li>two co-defendants are &ldquo;intertwined in an incestuous relationship, the likes of which have not been seen since the days of Sodom and Gomorrah.&rdquo;;</li>
<li>a defendant was possibly &ldquo;affixing its buzzard-like grin&rdquo; on the region &ldquo;ready to ravenously pounce upon the medical facilities in these areas like the buzzard swoops down upon the carcass of a dead cow.&rdquo;;</li>
<li>an individual defendant who had stuttered during a television interview was compared to &ldquo;Porky Pig, a famous Warner Brothers cartoon character, [who] also stuttered.&rdquo;</li>
</ul>
This language (and more) in plaintiffs&rsquo; filed briefs prompted Judge Amul R. Thapar, writing for the Court of Appeals, to note that &ldquo;there are good reasons not to disparage your opponent, especially in court filings.&nbsp; The reasons include civility; the near-certainty that overstatement will only push the reader away ...; and that, even where the record supports an extreme modifier, the better practice is usually to lay out the facts and let the court reach its own conclusions.&rdquo;
After rejecting each of plaintiffs&rsquo; arguments in favor of standing, the court concluded by writing, &ldquo;[We] take a moment to remind plaintiffs&rsquo; counsel that, as an officer of the court, he is expected to treat other parties in the case (as well as their counsel) with courtesy and professionalism.&nbsp; Careful research and cogent reasoning, not aspersions, are the proper tools of our trade.... Counsel will best serve his clients if he remembers this going forward.&rdquo;
I sit on my state supreme court&rsquo;s <a href="http://www.supremecourt.ohio.gov/Boards/CP/about.asp">Commission on Professionalism</a>, so this is a subject I think about quite a bit.&nbsp; Many states have similar bodies devoted to promoting behaviors and attitudes that go above mere adherence to the Rules of Professional Conduct, and many have adopted <a href="http://www.supremecourt.ohio.gov/Publications/AttySvcs/proIdeals.pdf">statements on professional ideals</a>, as the supreme court in my Buckeye State has.
Litigators in particular should view Judge Thapar&rsquo;s opinion as words to the wise.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Reminder from the bench:  professionalism means not comparing opposing party to a buzzard or Porky Pig