law

What Happens When A Lawyer Makes A Mistake?

The Model Rules of Professional Conduct are clear about what must happen when a lawyer makes a “material mistake”, and the steps are grounded in the duty of competence, diligence, and communication owed to a current client.

The Ethical Framework

ABA Model Rule 1.1 requires legal knowledge and thoroughness. Rule 1.3 requires promptness, and Rule 1.4 mandates keeping clients informed about their matter and promptly responding to requests for information.

When a mistake has been made during a legal representation, these rules all come into play. If the error is “material,” it must be disclosed promptly. Hoping the client never finds out or quietly fixing it before disclosing is never a good idea as it can risk turning a simple lapse into a Rule 8.4(c) problem involving deceit or misrepresentation.

What Counts as a“Material Mistake”?

The ABA addressed this question in Formal Opinion 481, which describes a “material mistake” as (1) an error reasonably likely to harm or prejudice the client’s interests, or (2) that a reasonable client would want to know about to make informed decisions.

Examples include missing a filing deadline, failing to raise a claim, giving incorrect legal advice, or any oversight that limits the client’s legal position. Modern practice errors such as signing a filing with hallucinated cases, citations, or quotations probably fall into this “material” category. By contrast, small mistakes—an actual typo, a short delay, or a minor procedural misstep—may not be material enough to require disclosure if they can be quickly corrected.

Tell the Client

When a material mistake has been made, client disclosure should be prompt, factual, and transparent. Rule 1.4 Comment 7 makes it clear that withholding information from the client because it may cause you harm is forbidden. The client should be told what happened, what it means for their rights, what can be done to fix it, and what choices they have, including whether they should seek independent advice.

The duty to disclose exists only during the representation. Once the representation ends, there is no ongoing duty to contact former clients to confess past mistakes unless silence would perpetuate a fraud or violate another rule.

Fix the Mistake and Watch for Conflicts

Once the error has been disclosed, diligence requires quick action to repair the damage. That might mean filing a motion for relief, disclosing information to the court under the duty of candor (Rule 3.3), or negotiating with the opposing party to limit prejudice to the client’s case. Because lawyers are fiduciaries to their clients, work done to undo a mistake—whether material or not—is not billable.

Also be aware that if your personal interest in avoiding liability could limit the ability to give independent advice about the mistake, that conflict may require withdrawal under Rules 1.7(b) and 1.16(a)(1).

Lead with Ethics, not Fear

Every lawyer makes mistakes, so don’t practice afraid. Practice prepared. Know your duties, act quickly if you do make a mistake, and remember that owning a mistake the right way is one of the strongest demonstrations of professionalism.

© 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

No Shortcuts: Why Fundamentals Still Win in Law

My latest blog takes a hard look at recent cases where lawyers skipped the basics, and why “no shortcuts” isn’t just a football mantra — it’s a professional requirement.

By Jeanne M. Huey

The Basics Are the Story

I could have headlined this “Is This Still Happening?” But we’ve been asking that for over two years, and the answer is still “yes.” By “this,” I mean lawyers using AI for legal research — and not bothering to verify the results. And not at the margins — we’re talking about big international firms that have every research tool, policy, training program, and resource that money can buy.

Nobody expects us to be perfect all of the time. We’ve all fumbled — accidentally misquoted a case, misspelled a cite, or leaned on a holding that later got picked apart. Those are part of the game, and when they are caught and fixed, there is no penalty. But using AI-generated citations without checking them? That’s not a misstep — that’s running a hook and ladder on the very first play.

When Fundamentals Get Skipped

Last month, in Johnson v. Dunn, three Butler Snow LLP lawyers were sanctioned after one of them admitted to using unverified AI-generated citations in court filings. Until early 2024, this lawyer’s AI use had been purely personal —finding vacation spots, looking up fitness info, even researching colleges for his kids.

He told the Judge that he knew the firm’s AI policy but did not comply with it. How a tool he had only used casually for travel tips became a substitute for the firm’s paid legal research services — which cost thousands each month for a reason — is hard to understand. As a partner, he could have asked any paralegal, associate, or staff person to pull the cases and highlight the relevant passages for his review; reviewing them would have taken minutes. The only charitable explanation is that he thought AI was a legitimate legal research platform. If that’s true, this case shows that when it comes to the use of technology in the practice of law, even strong institutional safeguards mean little without constant education and personal accountability.

The Brief Bank

At the show-cause hearing in the case, another Butler Snow lawyer explained why he hadn’t checked the citations added by his colleague. His reasoning: Many of their cases involve the same law and precedent, so his team often pulls citations from older briefs and plugs them into briefs on the same topics. The suggestion was that this eliminated the need to rely on AI and was safer because they had used those cases before.

The Judge felt differently, writing that this practice was one of three factors that  “deepened rather than allayed” her concerns. 

The problem with this practice? Past use isn’t proof of present accuracy. Laws change. Precedent gets overturned—context matters. 

This same concern applies to lawyers who borrow motions or briefs from other lawyers — or who post to a listserv asking for forms or legal advice from other lawyers that they plan to file as their own. Whether the information comes from your firm’s file cabinet, another lawyer’s Dropbox, or an AI chatbot, if you haven’t verified it for the case at hand, you’re taking a shortcut you can’t defend.

Cite & Highlight: A Run Up the Middle

Here’s an easy solution: require every case cited to be attached in an appendix with the relevant quote or holding highlighted. I call it “Cite & Highlight.” Courts could adopt it tomorrow. Firms could implement it today. The time it takes is nothing compared to the reputational cost of getting burned by a bad citation.

In Johnson v. Dunn, the partner who dropped AI-generated citations into a filing without review failed to make the reasonable inquiry Rule 11 requires. In Lacey v. State Farm (C.D. Cal. May 5, 2025), several large national firms made the same mistake by using AI — this time with 27 citations, nine wrong and at least two nonexistent. Whether the bad law comes from AI, an old brief, or a motion written by another lawyer, the problem is the same: If your name is going on it, you’re skipping the work. And in law, like football, there’s no substitute for work.

Flash and Fundamentals

Oregon football has a reputation for flash — the best uniforms, the newest tech, the gleaming facilities (thanks, Uncle Phil). But that’s not why they win.

Coach Lanning tells his players to do the work every single day and ask themselves: “How can I improve?” To own mistakes. To learn from people who do it better. To have the patience to get it right, because fast and wrong is still wrong. That lesson fits the courtroom as well as it does the gridiron.

The ethics rules don’t demand excellence — they set the baseline for lawyer ethics. But clients don’t hire us for the baseline. They pay us to prepare, check, and deliver our best. Yes it is hard, but if it was easy, anyone could do it. The practice of law requires intense work done meticulously every time.

Senior lawyers: model that standard. Young lawyers: don’t let pressure for speed push you into skipping steps. Stop feeding the myth that good work can be done in a flash. Shortcuts might buy you a little time today, but they undermine your work product, your discipline, and your success in the long run.

Law is not a job — it’s a profession. Every filing, every argument, every case reflects our expertise and pride in our work. Wins — in football or in law — are constructed day by day, decision by decision. And there are no shortcuts.

Go Ducks.

Oops, I Did It Again: Lawyers Rely on AI at Your Peril

Lawyers continue to be misled by AI-generated case law that appears genuine but isn’t. This post is about a personal experience and why lawyers can’t afford to stop thinking.

I Gave GAI Clear Instructions: It Still Lied

A few weeks ago, for fun, I asked the GAI program I use to look on the internet and see if there was a quote on a specified topic from a “Founding Father”. Within seconds, it provided me with an on-point quote, which was attributed to John Adams, accompanied by a hyperlinked citation. It was the best party trick ever–until it wasn’t. Because the quote didn’t exist. Anywhere. When I called it out, GAI replied: “It sounds like something John Adams would say.”

Yesterday, I tested it again.

I asked for it to find the rule for a certain proposition. A rule of civil procedure that I knew existed. It told me the rule didn’t exist. I wanted to see if it would correct itself, so asked it to back that up with a case and a link to the statute. It did—with confidence. It even provided a quote from the case that it said supported the position it had taken. Except it was still wrong–the rule did exist and it had simply made up the quote.

When I pointed out the error and asked how this had happened, GAI explained:

“I incorrectly generalized and answered based on a commonly followed general rule.”

Mind you, I had given it specific, detailed instructions and prompts—things I had learned from CLE courses and articles about how to use AI and get accurate outputs. These included telling it not to make anything up, to double-check sources, and to provide links to public, official sources for every “fact” it retrieved from the internet.

What I got was a lie, wrapped in a polished, confident tone, dressed up like a real legal citation—because GAI is built to give me what I want and to sound persuasive and helpful, even when it’s dead wrong.

Lawyers’ Misuse of AI Continues to Make Headlines

Different courts, different lawyers, but the failure is identical: If you don’t read the case, the court will—and then you’ll make the news. Here is a partial list of headlines just from the past few weeks–hyperlinked to their source:

May 14, 2025 AI Hallucinations Strike Again: Two More Cases Where Lawyers Face Judicial Wrath for Fake Citations 

May 21, 2025, Judge Considers Sanctions Against Attorneys in Prison Case for Using AI in Court Filings

May 29, 2025, Lawyer Sanctioned $6,000 for AI-Generated Fake Legal Citations.

May 30, 2025, Southern District of Florida Sanctions Lawyers for Submission of AI Hallucinated Caselaw

May 31, 2025, US Lawyer Sanctioned After Being Caught Using ChatGPT for Court Brief

This Should Not be News to Most of Us

The problem of overworked lawyers attempting to take shortcuts is not new. Only the method has changed. For decades, lawyers have been getting sanctioned or called out by opposing counsel for:

  • Using the headnote from a paid online legal research tool as a “quote” without reading the opinion to confirm it.
  • Copying a pleading from a prior case and filing it without checking if the law still applies.
  • Lifting a motion from a CLE binder, online research tool, or lawyer listserv conversation and passing it off as their own.
  • Using the analysis from someone else’s case within the firm, without knowing or understanding the facts, court, or procedural history of that case. 

Every one of these examples has the same flaw: the lawyer wanted a way to circumvent doing the work we get paid to do i.e. think. 

The Real Problem Isn’t AI

AI isn’t the problem. It’s just the newest version of a long-standing temptation: to find a shortcut. Something to save time, make us look smart, or help us meet a deadline when the work hasn’t been done.

If you’re feeling pressure to use AI—or to do things faster, cheaper, or “more efficiently” than ever before—hear this:

You get paid to think, and no technology can replace your judgment or experience.

Your speed or formatting skills don’t determine your value. You are trained to analyze, reason, and argue. Your value lies in how you perceive what matters, identify what’s missing, and determine what it will take to achieve your client’s goals. You can’t delegate that to a machine just like you can’t outsource that to someone else’s pleading or form.

And don’t let fear push you to use a tool you don’t understand. Stop. Breathe. Learn what it can do. Learn what it can’t. Use it wisely—don’t rely on it to think for you, and don’t believe it when it assures you that it has. 

For Judges and Supervisors: A Fix Worth Considering

To stop this problem from recurring, consider this simple fix:

Require every pleading filed with the court that contains a reference, cite, or quotation to any authority to be internally hyperlinked to an attached appendix that includes a copy of the source with the relevant rule, holding, or quote highlighted for the court’s convenience.

This should become standard, just like a certificate of service. Lawyers should also apply this requirement to the work of those they supervise. And no, the clients should not pay for this “extra” work; it overhead–the price of doing business in the era of AI.

The Technology Changed, the Job Didn’t

This isn’t about shaming lawyers. It’s about reminding us who we are.

We are not prompt engineers or data processors. We are professionals who took an oath and have duties to our clients, the courts, and the public.

So please, don’t be a headline. 

Read the case. Check the quotes. Confirm the law is still good. And don’t rely on any tool that doesn’t distinguish between the truth and a lie.

ABA Ethics Opinion 516 and Permissive Withdrawal

Jeanne M. Huey

On April 2, 2025, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 516, offering interpretive guidance on a frequently misunderstood part of the ABA’s Model Rules of Professional Conduct—the standard for permissive withdrawal under Rule 1.16(b)(1). Part (b)(1) of Rule 1.16 permits a lawyer to withdraw from representation in an active matter without client consent if it can be done without “material adverse effect on the interests of the client.” 

Withdrawal nearly always causes some disruption to the client, and while Opinion 516 recognizes this, it focuses on determining when that disruption crosses the line into an ethics rule violation. In other words, when does withdrawal cause “material adverse effect” on the client’s matter? The opinion seeks to answer that question by clarifying what should be considered “material” in this context. 

As part of the answer to that question, and for the first time, the ABA formally states in the opinion that under Rule 1.16(b)(1), a lawyer’s reason or motivation for withdrawal is irrelevant. Instead, the focus is solely on the materiality of the adverse effect on the client’s legal interest and whether the withdrawal will cause the client significant harm. 

The opinion fills a long-standing gap in ABA guidance by confirming that a lawyer may ethically withdraw for strategic or business reasons, such as making room for a new client, as long as the existing client is not materially harmed. This interpretation sets (b)(1) apart from the other six reasons for permissive withdrawal under Rule 1.16(b), each of which considers the lawyer’s justification and reasons for withdrawal. 

ABA Model Rule 1.7 (concurrent client conflicts) and ABA Model Rule 1.9 (duties to former client) are also relevant to this analysis through the application of judicial doctrines and may come into play depending on the lawyer’s next engagement. 

Judges: The Last Word 

The opinion acknowledges that while Rule 1.16(b)(1) provides an ethical pathway for withdrawal, when a matter is in litigation, courts retain wide discretion to disqualify lawyers for conflicts of interest on fairness or policy grounds, even when there is no ethics rule violation. In other words, lawyers who ethically withdraw under Rule 1.16(b)(1) to represent a new or different client can still find themselves disqualified from that representation under the rules regarding conflicts of interest. 

Two judicial doctrines briefly discussed in the opinion and dissent are relevant here. The first is the “hot potato” doctrine, a court-made rule prohibiting lawyers from dropping one client to represent another in a matter where the two clients’ interests conflict. The opinion distances itself from the hot potato doctrine, noting that it is not part of the Model Rules and arises from judicial interpretations of loyalty, not the ethics rules. Still, lawyers should be aware that courts may invoke this doctrine even when a withdrawal is ethically permissible under Rule 1.16(b)(1). In short, the hot potato doctrine is not about whether a lawyer may withdraw under the ethics rules but whether a court will recognize that withdrawal when analyzing conflicts or disqualifying counsel. 

As the dissent notes, the opinion largely avoids discussing an important carve-out from the hot potato doctrine: the “thrust-upon” exception. This exception applies when a conflict arises through no fault of the lawyer, such as when two clients merge or a new party is added to a matter. In those cases, courts have allowed lawyers to drop one client, often the one with the weaker or less central relationship, without being penalized under hot potato principles. While the ABA correctly distinguishes its ethics opinion from court-made disqualification rules, the dissent notes that the lack of treatment of this well-known exception is a missed opportunity to give lawyers relevant guidance. 

While the dissent, written by two committee members, does not directly undermine the opinion’s main conclusions, it does point out these and other areas in which the opinion’s scope is somewhat limited and is worth reading. 

Finally, every litigator seeking permissive withdrawal from an active matter in court must not lose sight of the most basic requirement of any such withdrawal—something that the opinion only mentions in a footnote. Under Model Rule 1.16(c), “[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” 

When a lawyer seeks to withdraw from representing a client in a court case, the judge will always have the last word, regardless of what the ethics rules or opinions say. 

Conclusion 

Formal Opinion 516 confirms that withdrawal is ethically permissible under Rule 1.16(b)(1) if the client will not suffer material harm, regardless of the lawyer’s motivation. That includes withdrawing to avoid a conflict or to take on a new client since the lawyer’s reason for the withdrawal is not part of the “material harm” analysis. 

However, when reading the opinion and dissent together, the message for lawyers is clear: If you want to withdraw from an active representation, you must comply with Rule 1.16(b)(1) but should always consider how courts and the client will view your decision and plan accordingly. Client communication, proper documentation, transition planning, and attention to conflict analysis remain critical even if the withdrawal is allowed under the ethics rules. 

Lawyers should read the full text of Formal Opinion 516 and, because ethics opinions and rules differ across jurisdictions, should know and follow the relevant ethics rules, opinions, and case law in the jurisdictions where they practice. 

© 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 

The Larger Cost of Reckless GAI Use in Litigation

Jeanne M Huey 

March 3, 2025

Courts, opposing parties, and clients all suffer when lawyers fail to properly vet work generated by artificial intelligence (“AI”), leading to wasted judicial resources, procedural delays, and broken client and public trust. 

Gauthier: GAI Hallucinations in Court Filings 

A recent case serves as a stark reminder that competence and diligence in using generative AI (“GAI”) tools is not optional but is an ethical imperative. 

In Gauthier v. Goodyear Tire & Rubber Co., a lawyer was sanctioned for submitting unverified GAI-generated content in a response to a motion for summary judgment. No. 1:23-CV-281 (E.D. Tex. Nov. 25, 2024). This included two citations to entirely fabricated cases and nonexistent quotations from seven actual cases—that is, “hallucinations.” 

In sanctioning the lawyer, the court determined that the lawyer submitted a false statement of law to the court and failed to rectify the mistake after opposing counsel pointed it out in their reply. Instead, the lawyer did not address the error until the court issued a show-cause order. The court also remarked that “it is unclear what legal research, if any,” the lawyer conducted before filing the response. Id. at *5. 

The lawyer was ordered to pay $2,000 into the court registry, to take one hour of CLE on the topic of GAI in the legal field, and to provide his client with a copy of the sanctions order. The sanctions imposed were relatively mild considering the potential harm to the client, the opposing party, and the integrity of the court system. 

Wasted Resources and Judicial Frustration 

GAI-generated errors like those in Gauthier force courts to spend time unraveling the problem rather than addressing the substantive legal issues. That’s why courts increasingly impose strict requirements in their local rules regarding GAI use. 

In addition to finding that the lawyer violated Federal Rule of Civil Procedure 11, the Gauthier court found violations of its local rules requiring lawyers to exercise candor and diligence and mandating that lawyers review and verify any computer-generated content before submitting it. 

Moreover, the court likely could have found a violation of ABA Model Rule 3.3 pertaining to candor to the tribunal, and ABA Model Rule 8.4(c) and (d) for engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation” and that is “prejudicial to the administration of justice.” The lawyer also could have been referred to the local disciplinary authority by the court, opposing counsel, opposing party, or client. 

Rule 11 already provides a framework for addressing these concerns, but if lawyers continue to disregard it, courts may impose stricter measures. Lead counsel might be required to certify or swear to the accuracy of every filing—something their signature should already indicate. Courts could mandate CLE credits on AI use as a condition for good standing or pro hac vice admission. Additional burdens may include requiring attorneys to keep records of all GAI-generated prompts used in preparing the filing or to attach every cited case as an appendix with key holdings and quotations highlighted. Courts might also implement prefiling review requirements, mandating independent verification of AI-generated content before docketing. 

Unnecessary Burdens and Expenses for Opposing Parties 

In Gauthier, the opposing counsel said that they had spent significant time and resources—over $7,500 in fees—determining that the citations and quotes in the response were fictitious and bringing the issue to the court’s attention. However, lawyers who use GAI irresponsibly do not simply create wasted work for their adversaries. An offending lawyer almost certainly violates their ethical obligations under ABA Model Rule 3.1, which prohibits lawyers from bringing or defending claims that lack a legal or factual basis, ABA Model Rule 3.2, which requires lawyers to make reasonable efforts to expedite litigation, and ABA Model Rule 3.4, which mandates fairness to opposing parties by prohibiting conduct that delays or burdens litigation without substantial justification. 

Although courts may not always directly compensate opposing counsel for fees incurred by the other side’s careless use of GAI—the Gauthier court did not—judges are not blind to the larger impact of such conduct. If GAI-related errors continue to occur, lawyers can expect (and should ask) courts to shift the burden of these costs onto the offending lawyers through harsher sanctions and fee-shifting orders. 

Sanctions and Eroded Client Trust 

The most direct impact of GAI incompetence is on the lawyer-client relationship. In Gauthier, the court ordered that the sanctions order be provided to the lawyer’s client so that the client would know that his lawyer had been sanctioned for submitting false information to the court. 

Beyond the immediate embarrassment and potential financial consequences to the lawyer, basic competence is at play. ABA Model Rule 1.1 Comment 8 requires lawyers to maintain competence in the technology that they are using in their practice, including understanding the technology’s benefits and risks. A lawyer who does not understand how GAI functions or fails to verify GAI-generated work has not met this duty of competence. While clients expect lawyers to be efficient and cost-effective and may think that using GAI will help reduce legal fees, they do not pay lawyers to take risks with their case outcomes; they certainly don’t pay for them to misrepresent the law and be embarrassed in front of a judge. A single GAI-related error could permanently undermine clients’ faith in their attorney and end the representation. 

The Public’s Perception: Lawyers Need to Control the Narrative 

Currently, the public is receiving two conflicting messages about GAI: 

• “GAI will replace lawyers.” 

• “Lawyers are getting sanctioned because they do not know how to use GAI.” 

Neither narrative is good for the profession. Clients will resist paying for legal expertise if GAI is considered an inevitable replacement. Public confidence in the legal system will erode if lawyers can’t be trusted to understand and use GAI correctly. 

The only way to control this perception is through responsible behavior, professionalism, and a commitment to meeting and exceeding our ethical duties under the rules when we use GIA and related technology. It will also be necessary to effectively communicate with clients about GAI and how it might be used within the firm, such as in billing software, or in their case, which may require their informed consent. 

Ethics opinions and court rules concerning GAI differ across jurisdictions, and the applicable standards of care are evolving rapidly. Staying current and ethically integrating GAI tools into our law practices will take time and attention. Those who fail to do so risk not just sanctions but harm to both their professional reputation and the credibility of the legal system: lawyers who understand the risks and benefits of GAI and implement its use responsibly will not only protect their practice but also strengthen public trust in the profession and help shape its future. 

© 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 

The Power of Three: Civility, Professionalism, and Zealous Advocacy 

Three: A Magic Number

The number three seems to have extraordinary power, whether in art, where the “rule of thirds” creates visual harmony—the eye does love an odd number—or in structures, where triangles provide stability. The legal profession has its own “power of three” in the form of zealous advocacy, professionalism, and civility. Like the three poles supporting a tripod, each principle is essential in defining an attorney’s highest duty: to act in the client’s best interests while maintaining the profession’s integrity.

The first, the often-maligned concept of “zealous advocacy,” rests on the belief that truth is best revealed when two dedicated advocates argue opposing sides. This is distinct from European courts, particularly those following civil law traditions, where the court’s active role in fact-finding is prioritized over the adversarial contest between parties. 

However, advocacy is only valuable when it serves the truth, so zealous advocacy is limited to conduct that promotes fact-finding. To keep advocacy in line, the rules of professional conduct guide lawyers to behaviors that reveal rather than obscure the truth. In this way, they act as a check against a “win at all costs” mindset and reinforce that advocacy should not compromise integrity. Civility also plays a key role, acting as a brake on zealous advocacy that goes too far. These three concepts uphold a balanced approach to justice, keeping advocacy aligned with truth-seeking.

Zealous Advocacy: Not Dead Yet

Throughout much of the 20th century, the principle of zealous advocacy was a core part of professional standards for lawyers. This changed when the American Bar Association released its Model Rules of Professional Conduct in 1983. These Rules omitted direct references to zealous advocacy, reserving the use of the term “zeal” for the Preamble and comments to the Rules. Most state bars followed this lead in amending their own rules. 

In this limited form, the concept of “zealous advocacy” is refined to focus on client-centered and respectful advocacy. The commentary to Model Rule 1.3 clarifies that zeal should operate within ethical boundaries, reminding lawyers that diligent representation doesn’t require “offensive tactics” and encourages treating everyone involved in the legal process with “courtesy and respect.” These comments make it clear that zealous advocacy is about responsible and effective representation, not aggression for its own sake. 

Compare and Contrast: Civility and Professionalism

Although related, civility and professionalism are distinct, and each is necessary. Civility cannot be reduced to written rules because its concerns are situational and directly tied to specific interactions. It requires respect, patience, and restraint even under pressure, but the conduct these require may vary with the situation. Professionalism goes beyond individual interactions and encompasses a lawyer’s approach to practice, obligations to the justice system, and the ethical standards to be upheld in all aspects of their work. A lawyer can be civil in a particular case without demonstrating overall professionalism, and vice versa. Professionalism asks more of attorneys than civility alone: it includes a dedication to competence, integrity, and ethical decision-making that extends beyond individual interactions and reflects a lawyer’s commitment to the justice system.

Civility and Zealous Advocacy: Powerful Allies

Civility in the legal profession requires lawyers to show respect toward opposing counsel, opposing clients, and the court. The ABA’s rules and opinions clarify that an attorney’s responsibility to their client does not excuse incivility, but there is more to civility than good manners. Hostile, rude, and bullying behavior is just lousy advocacy and is often an effort to cover up a lack of preparation or competence. Judges and juries must be persuaded, and while people may fear a bully, they will never respect it. True advocacy is strengthened, not weakened, by civility. Civil discourse thus serves as a powerful ally to zealous advocacy, balancing aggression with respect.

Professionalism: The How-To 

Civility is an element of genuinely persuasive advocacy, but professionalism defines the boundaries of that advocacy, encapsulating an attorney’s duty to act in a way that reflects integrity, fairness, and commitment to justice. ABA Model Rule 3.4, for example, instructs lawyers to be fair to opposing parties, while Rule 4.4 calls for respect toward third parties. Professionalism provides a broader ethical context within which zealous advocacy must operate. Zealous advocacy may seem to focus only on the client’s interests; professionalism reminds attorneys that pursuing the client’s interest must take place in service to the interests of justice. Professionalism provides the guardrails that prevent zealous advocacy from turning into a free-for-all in which no holds are barred, and justice becomes irrelevant to promoting the client’s interest.

Balancing Civility, Professionalism, and Zealous Advocacy

The “power of three” reminds us that civility, professionalism, and zealous advocacy are not competing ideals but instead work together to define our duty to our clients, our duty to the justice system, and our duty to respect others, which is the mark of effective lawyering. Zealous advocacy without civility leads to unproductive conflict, while civility without zeal risks losing sight of the client’s interests. Professionalism embraces both, ensuring that civility and advocacy serve the client and the justice system. A balanced commitment to all three creates a steady, resilient structure that upholds a lawyer’s duty to serve their client’s best interests within the rule of law. 


 © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.