The Regulation of Courtesy: Does Kansas Need a
Code of Professionalism?
Mike Hoeflich* & J. Nick Badgerow"
I. INTRODUCTION
Over the past several decades, there has been a national discussion
among lawyers and legal educators about the perceived decline in the
professionalism of the bar.' While some of this simply may be a product
of nostalgia for a "golden age" of lawyer cooperation and civility, a
review of ancient literature leads one to doubt when that "golden age"
might have been. Many are the books and articles written by lawyers
dating back at least as far as the nineteenth century decrying the lack of
courtesy among lawyers. 2 Indeed, Charles Dickens wrote a whole book
about it.3 So, this recent "nostalgia" may be for a time that never existed.
Kane Professor of Law, University of Kansas School of Law. The authors thank Tom
Colonna, J.D. candidate 2013, University of Kansas School of Law, for his assistance on this Essay.
Partner, Spencer Fane Britt & Browne, LLP, Overland Park, Kansas; Member, Kansas
Judicial Council; Chair, Kansas Judicial Council Civil Code Advisory Committee; Chair, Kansas
Bar Association Ethics Advisory Committee; Member, Kansas Board of Discipline for Attorneys;
Chair, Johnson County (Kansas) Ethics & Grievance Committee.
1. There is a vast amount of literature on professionalism and the lack thereof. For two
particularly insightful examples, see Sol M. Linowitz, Regaining Respect for the Legal Profession:
Some Suggestions, Keynote Address at Cornell Law School Centennial (April 15, 1988), in N.Y. ST.
B.J., Nov. 1988, at 8, and Committee on the Profession, Is Professionalism Declining?, 47 REC.
ASS'N B. N.Y.C. 129 (1992).
2. See Hon. Warren E. Burger, Chief Justice, U.S. Supreme Court, The Necessity for Civility,
Remarks at the Opening Session of the American Law Institute (May 18, 1971), in 52 F.R.D. 211,
213-14 (1971) (discussing the writing of a nineteenth-century barrister).
3. CHARLES DICKENS, BLEAK HOUSE (Norman Page ed., Penguin Books 1971) (1853). The
author's condemnation of the bar is summarized in his thesis on attorney and client:
The one great principle of the English law is, to make business for itself. There is no
other principle distinctly, certainly, and consistently maintained through all its narrow
turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous
maze the laity are apt to think it. Let them but once clearly perceive that its grand
principle is to make business for itself at their expense, and surely they will cease to
grumble.
Id. at 603-04. For an early example of public unhappiness with the law and the legal profession, see
HONESTUS, OBSERVATIONS ON THE PERNICIOUS PRACTICE OF THE LAW (Boston, True & Weston
1819), reprinted in SOURCES OF THE HISTORY OF THE AMERICAN LAW OF LAWYERING 45 (Michael
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On the other hand, there is also reason to believe that twenty-first-
century pressures on lawyers and law firms have, in fact, led to a more
serious decline in the ways in which lawyers behave toward each other.
At the present time, recent law graduates face a tough job market and
heavy student debt. Law firms find themselves increasingly under
pressure from clients to reduce costs and increase success rates.
Outsourcing routine legal tasks to foreign, less expensive law firms or
other service providers only increases the economic pressures on firms.
Depression, gambling, and the use of alcohol and drugs by lawyers do
not appear to be declining.4 It is not at all surprising, then, that in the
face of so much economic, social, and professional pressure, some
overstressed lawyers behave rudely and are less cooperative with their
adversaries.
In 2009, in the face of these perceived problems, Robert E. Davis,
the late Chief Justice of the Kansas Supreme Court, suggested that
Timothy M. O'Brien, then-president of the Kansas Bar Association
(KBA), form a commission on professionalism to explore ways in which
to respond to this "crisis" at the bar.5 That commission has been working
on these problems under O'Brien's leadership since its formation. The
commission has met several times, and these writers were asked to be
members of that commission. As a result, we have spent a good deal of
time thinking about the matter of "professionalism" among Kansas
lawyers, whether there is, in fact, a "crisis," and, if there is, what steps
may be taken to best improve the situation.
It is our sense that there is a crisis, at least in two respects. First,
there is no doubt that the general public neither understands nor
appreciates the skill, dedication, and public service exhibited by the vast
majority of Kansas lawyers. Most in the general public are frankly
cynical about lawyers and the entire system of justice. Second, as many
lawyers and judges have expressed, it seems that civility, decency, and
cooperation among Kansas lawyers is on the decline, based on personal
experience, case reports, and anecdotal evidence.
Having concluded that there is a crisis, however, we have also
concluded that the solution to this crisis is not the adoption of a "code of
professionalism"-in the sense of a system of regulatory rules
H. Hoeflich ed., 2007).
4. See J. Nick Badgerow, Apocalypse at Law: The Four Horsemen of the Modern Bar-Drugs,
Alcohol, Gambling and Depression, 18 PROF. LAW., no. 3, 2007 at 2, 2.
5. Letter from Hon. Robert E. Davis, Chief Justice, Kan. Supreme Court, to Tim O'Brien,
Esq., Clerk of the Court, U.S. Dist. Court for the Dist. of Kan. (Oct. 1, 2009) (on file with author).
414 [Vol. 60
THE REGULATION OF COURTESY
accompanied by sanctions for their violation-as has been done in
several states. Instead, we suggest a combination of efforts that (a) use
existing means of controlling inappropriate behavior, (b) adopt a new
requirement for mandatory "professionalism" education for law students
who wish to become members of the Kansas bar, and (c) require annual
continuing education for lawyers once they become members of the bar.
6This last effort is already a requirement in Kansas.
II. WHAT IS "PROFESSIONALISM"?
One of the first problems in addressing the crisis in professionalism
is to define the term "professionalism." Every lawyer and law student
understands that the terms "legal ethics" or "professional responsibility"
refer to the types of behavior addressed by the Kansas Rules of
Professional Conduct7 and enforced by the Kansas Disciplinary
Administrator8 under the aegis of the Kansas Board for Discipline of
Attorneys. 9
But there is no such easy definition for "professionalism." Indeed, it
is our experience that there is no precise definition of the term to which a
majority of lawyers would agree. To a large degree, however, it appears
that when lawyers speak of professionalism, most talk about behaviors
covered by the old-fashioned term "professional deportment." 0 By this,
we mean the minimum level of civility in word and action that lawyers
believe every lawyer should show every other lawyer, the minimum level
of cooperation expected among lawyers in adversarial and non-
adversarial situations, and the minimum degree of courtesy one would
expect lawyers to show each other. An example of minimum civility
might be refraining from using insulting terms or shouting when
speaking to another lawyer. An example of cooperation might be a
willingness to schedule meetings, depositions, and trial dates at times
that do not cause an undue burden to another lawyer. An example of
minimum courtesy might be returning telephone calls in a reasonable
6. KAN. Sup. CT. R. 802.
7. KAN. Sup. CT. R. 226.
8. KAN. SUP. CT. R. 205.
9. KAN. SUP. CT. R. 204.
10. The use of this phrase in the American legal context dates back at least to the first half of
the nineteenth century. See DAVID HOFFMAN, Fifty Rules on Professional Deportment, in A
COURSE OF LEGAL STUDY, ADDRESSED TO STUDENTS AND THE PROFESSION GENERALLY 720
(Baltimore, Joseph Neal 1836), reprinted in SOURCES supra note 3, at 181.
415201l]
KANSAS LAW REVIEW
time and arriving at scheduled events on time. Most lawyers would
agree with these examples-at least in theory-but, unfortunately, they
do not always employ them in practice.
On August 23, 2011, the Kansas Bar Association Commission on
Professionalism adopted the following general definition, as proposed by
a subcommittee appointed for that purpose: "'Professionalism' focuses
on actions. A professional lawyer acts with civility, respect, fairness,
learning and integrity, towards clients, as an officer of the legal system,
and as a public citizen with special responsibilities for the quality of
justice."" Using this definition, the profession can observe and judge a
lawyer's actions, while not judging a lawyer's thoughts. The definition
appreciates every lawyer's tripartite obligations: first, to clients, which
provides the opportunity to serve and earn a livelihood; second, to the
system of justice, which provides the arena for the lawyer's work; and
third, to the public, which affords the lawyer her special franchise.12
Indeed, many professional considerations, as well as many ethical issues,
arise from the tension between or among these forces that pull lawyers-
sometimes in differing directions.
Lawyers wish to be perceived by clients as zealous advocates, and
indeed, the Model Rules require such zeal. 13 On the other hand, lawyers
wish to be accepted as able and knowledgeable by the tribunals before
which they practice and should avoid burning bridges with courts or
opposing counsel with whom they will presumably continue to work
long after a single case concludes.
III. PROFESSIONALISM CODES
One of the most popular responses to the professionalism crisis at the
bar today has been to call for the formulation and adoption of so-called
"professionalism codes." While there are differences among the various
professionalism codes that have been adopted in the United States, all
11. Agenda and Materials from the Kan. B. Ass'n to the KBA Comm'n on Professionalism 4
(Aug. 23, 2011) (on file with author).
12. See generally Robert Audi, The Ethics of Advocacy, I LEGAL THEORY 251 (1995)
(discussing in detail the tripartite obligations to client, court, and public).
13. KAN. RULES OF PROF'L CONDUCT R. 1.3 (2007), in KAN. SUP. CT. R. 226 ("A lawyer shall
act with reasonable diligence and promptness in representing a client."). The Comments then
explain that "[a] lawyer should act with commitment and dedication to the interests of the client and
with zeal in advocacy upon the client's behalf." Id. at R. 1.3 cmt. 1. See also In re Vanderbilt, 110
P.3d 419, 422 (Kan. 2005) (per curiam) (finding that attorney violated Kansas Rule 1.3 by failing to
act with sufficient diligence in representing his client).
416 [Vol. 60
THE REGULATION OF COURTESY
strive to mandate and regulate the types of behavior outlined above.14
An example of the intent behind these codes is illustrated by the
preamble to the Virginia State Bar's Principles of Professionalism:
Virginia can take special pride in the important role its lawyers have
played in American history. From Thomas Jefferson to Oliver Hill,
Virginia lawyers have epitomized our profession's highest ideals.
Without losing sight of what lawyers do for their clients and for the
public, lawyers should also focus on how they perform their duties. In
their very first professional act, all Virginia lawyers pledge to demean
themselves "professionally and courteously." Lawyers help their
clients, the institutions with which they deal and themselves when they
treat everyone with respect and courtesy. These Principles of
Professionalism serve as a reminder of how Virginia lawyers have
acted in the past and should act in the future.' 5
While not formally adopted by the Kansas Supreme Court, the KBA
published eleven principles of professionalism under the name Hallmarks
of Professionalism.16  Under these principles, adherents agree that a
lawyer:
1. Shows respect for the legal system through appearance, manner,
and conduct at all times;
2. Does not discuss client's affairs socially;
3. Does not blame others for the outcome of a case;
4. Recognizes one's income is secondary to serving the best interest
of the client;
5. Communicates with clients, other lawyers, and the judiciary in a
timely and complete manner and is prompt for all appointments;
6. Does not engage in ex parte communication with the court;
14. See generally Allen K. Harris, The Professionalism Crisis-The 'z' Words and Other
Rambo Tactics: The Conference of Chief Justices' Solution (pts. 1 & 2), 12 PROF. LAW., Winter
2001, at 1, 12 PROF. LAW., Spring 2001, at 1; Joan C. Rogers, Special Report, Disruptive Courtroom
Behavior Usually Can't be Defended as Zealous Advocacy, 27 LAW. MANUAL ON PROF. CONDUCT
(ABA/BNA) 580 (2011) (discussing different civility measures around the country).
15. VA. ST. B., PRINCIPLES OF PROFESSIONALISM (2009), available at http://www.vsb.org/pro-
guidelines/index.php/principles/.
16. KAN. B. ASS'N, HALLMARKS OF PROFESSIONALISM, http://www.ksbar.org/public/
hallmarks.shtml (last visited Sept. 15, 2011).
2011] 417
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7. Expedites the resolution of disputes through research, articulation
of claims, and clarifying the issues;
8. Abides by commitments regardless of whether they can be
enforced in a courtroom;
9. Who as a member of the judiciary should avoid speech and
gestures that indicate opinions not germane to the case, require
lawyers to be comprehensible in the courtroom, and discuss
pending cases only when all parties are present;
10. Is always mindful of the responsibility to foster respect for the role
of the lawyer in society; and
11. Demonstrates respect for all persons, regardless of gender, race, or
creed. 17
Similar aspirational codes have been adopted by a number of local
bar associations around the country, including the Johnson County
(Kansas) Bar Association in 1989.18 This Creedl 9-and, indeed, many
others-begins with a Preamble, which states a lawyer's overall
commitment to conduct herself in such a way that extends "civility and
courtesy ... to [her] clients, to [her] fellow attorneys, and to the courts
and tribunals in which [she] practice[s]."2 0
The Creed then follows the Preamble with four rules relating
respectively to a lawyer's dealings with clients, with opposing parties
and their attorneys, with courts, and with the public and our system of
justice.21 Each rule includes specific tenets, which explain in more detail
17. Id.
18. AM. B. ASS'N, PROFESSIONALISM CODES, http://www.americanbar.org/groups/
professional responsibility/resources/professionalism/professionalismcodes.html (last visited Sept.
15, 2011). In Kansas, Johnson County calls its code the "Creed of Professional Conduct." JOHNSON
CNTY. B. Ass'N, CREED OF PROFESSIONAL CONDUCT (1989), available at http://www.jocobar.org/
displaycommon.cfman=1&subarticlenbr-l.
19. JOHNSON CNTY. B. Ass'N, supra note 18. A more thorough and preferable-at least to
these authors-Lawyer's Creed of Professionalism is set forth in the Appendix to this Essay. See
infra Part VI. For a fuller description and exegesis on the Creed, see J. Nick Badgerow, The
Lawyers' Creed of Professionalism: Some Observations from the Field, 69 J. KAN. B. ASS'N 24
(2000).
20. JOHNSON CNTY. B. AsS'N, supra note 18 (emphasis added). The Kansas Rules of
Professional Conduct also recognize these three duties. "A lawyer, as a member of the legal
profession, is a representative of clients, an officer of the legal system and a public citizen having
special responsibility for the quality ofjustice." KAN. SUP. CT. R. 226 pmbl. [16], in KAN. SUP. CT.
R. 226.
21. JOHNSON CNTY. B. ASS'N, supra note 18.
418 [Vol. 60
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the duties and obligations of a professional to the client, other attorneys,
22the courts, and the legal system.
Although aspirational statements such as these may well influence
certain lawyers and reassure the public that the legal profession is
concerned with issues of professionalism, it seems obvious that they
have not served to stop or, perhaps, even slow the perceived decline in
professional behavior among lawyers. On the other hand, the mandatory
behavioral rules set out in the Model Rules of Professional Conduct as
adopted by the various states have also not been totally effective in this
regard. To a large extent, this is so because the Model Rules primarily
concern the ways in which lawyers interact with their clients, the courts,
and the general public. 2 3 Few rules relate to issues of civility, courtesy,
and cooperation among lawyers.24 Indeed, it is fair to say that the
absence of such topics in the Model Rules is attributable to the belief of
the lawyers and judges who formulated them that there was no need to
address these topics because they assumed that lawyers would behave in
such ways towards each other.25 The problem today, of course, is that
such assumptions seem to be false.
Additionally, the Model Rules prescribe minimum standards for
conduct, the violation of which will, and should, often lead to
discipline.26 On the other hand, professionalism should make a lawyer
feel compelled to do more than the minimum required just to avoid being
disciplined.27
One may argue that if aspirational statements about
professionalism-such as the Hallmarks or the Creed-are not effective
and if the current regulatory scheme for controlling lawyer behavior, like
the Model Rules, does not reach such matters, then the answer to the
''crisis" now facing the bar is to expand the Model Rules or create a new
2 2. Id.
23. See MODEL RULES OF PROF'L CONDUCT pmbl. (1983) (describing the main focus of the
Model Rules).
24. See MODEL RULES OF PROF'L CONDUCT R. 3.3-3.5 (1983).
25. One may trace the Model Rules back to the first rules of professional conduct published by
the American Bar Association in 1908, which themselves derive, in large part, from the code
adopted by the Alabama bar in 1898. See generally SOURCES, supra note 3 (outlining the history
and development of the modem Model Rules).
26. MODEL RULES OF PROF'L CONDUCT pmbl. (1983).
27. See KAN. RULES OF PROF'L CONDUCT pmbl. [16], in KAN. SUP. CT. R. 226 ("The Rules do
not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no
worthwhile human activity can be completely defined by legal rules. The Rules simply provide a
framework for the ethical practice of law.").
2011] 419
KANSAS LAW REVIEW
regulatory scheme to control professionalism among lawyers. We
disagree with this argument on at least two principal grounds.2 8
The first ground for rejecting a regulatory scheme for ensuring
professionalism at the bar is pragmatic. If the state adopted a new set of
professionalism rules, the heavy case load borne by the Disciplinary
Administrator's Office would, in all likelihood, increase substantially,
perhaps even double. Such an increase would require new resources and
staff, and it might well weaken the investigation and prosecution of
complaints filed under the existing Kansas Rules. 2 9 Since these existing
rules go to the very heart of the legal profession-that is, lawyer-client
relations-any weakening of the enforcement effort would be
undesirable.
The second ground for rejecting the adoption of new specific
regulatory rules on professionalism looks to the danger of subjective
judgments in the prosecution and enforcement of such rules. Notions of
courtesy, civility, and cooperation are not fixed or precise. What is a
reasonable time in which to return a telephone call to one individual in a
particular circumstance may be highly unreasonable to another.
Circumstances will frequently play a large role in determining
reasonableness in such a case. What is proper professional attire is a
question to which different individuals and forums may have very
different answers. Attempts at specific regulatory rules may well lead to
an overwhelming number of complaints (many of them groundless),
cross-complaints, and endless wrangling-all to the expense of clients in
the forms of fees and delay. Further, if the regulatory code requires
investigation, prosecution, and potential sanction for these issues, then
we predict that the process would be an administrative nightmare. It will
also be extremely difficult to arrive at a uniform application of such
rules. Therefore, it would be far better to establish aspirational rules with
a degree of generality and then leave it to judges to use their inherent
powers to ensure compliance.
28. At the August 23, 2011 meeting of the KBA Commission on Professionalism, as attended
by the authors, Vice-Chairman Judge Robert J. Fleming indicated that the Kansas Supreme Court
does not presently favor a regulatory-type code of professionalism.
29. See KAN. SUP. CT. R. 201-226 (outlining the standards by which attorneys should conduct
themselves and the rules relating to the discipline of attorneys).
420 [Vol. 60
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IV. ALTERNATIVE SOLUTIONS TO THE PROFESSIONALISM CRISIS
We suggest two means by which to deal with the current
professionalism crisis. First, the State should require law school and
post-graduate continuing education. Second, the State should increase
the use of existing regulatory mechanisms.
A. Education
The current approach to maintaining the ethics of the practicing bar
is twofold. First, lawyers are subject to professional discipline according
to rules adopted by the supreme court in every state. The Kansas
Supreme Court requires that every lawyer comply with the Kansas
Rules, 30 which are enforced by the Kansas Disciplinary Administrator.31
This office investigates and prosecutes complaints against lawyers for
breaches of the Kansas Rules and convenes hearing panels to adjudicate
those complaints deemed sufficiently serious to warrant such a process.32
The Kansas Supreme Court is also authorized to hear complaints, 3 and it
does so de novo and on the record.34 This is the regulatory part of the
professional responsibility process.
The second part of the process is educational. Every law school
accredited by the American Bar Association is required to provide
professional responsibility training to law students.35 Interpretation 302-
9 of ABA Standard 302(a)(5) of the ABA Standards for the Approval of
Law Schools, applicable to all accredited law schools, states: "The
substantial instruction in the history, structure, values, rules, and
responsibilities of the legal profession and its members required by
Standard 302(a)(5) includes instruction in matters such as the law of
lawyering and the Model Rules of Professional Conduct of the American
Bar Association., 36
30. See KAN. SUP. CT. R. 201-202.
31. KAN.SUP.CT.R.205.
32. Id.
33. See KAN. SUP. CT. R. 212.
34. See State v. Dixon, 664 P.2d 286, 290 (Kan. 1983) (per curiam) (citing KAN. SUP. CT. R.
212(f)) (noting that recommendations from disciplinary panels are not binding on the court).
35. AM. B. Ass'N, ABA STANDARDS FOR APPROVAL OF LAW SCHOOLs 2011-2012, Standard
302, http://www.americanbar.org/content/dam/abalpublications/misc/legal_education/Standards/
2011_2012_aba standards chapter3.authcheckdam.pdf.
36. Id.
2011] 421
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In addition to the instruction requirement imposed on schools by the
ABA, Kansas requires that every applicant to the bar achieve a passing
grade on the Multistate Professional Responsibility Examination
(MPRE) as a condition of bar admission.37 Furthermore, once admitted,
all actively licensed members of the Kansas bar must complete two hours
of continuing education in professional responsibility annually to remain
in good standing. This is the educational portion of the professional
responsibility scheme adopted in Kansas and most other states.
We propose establishing a similar educational structure to ensure that
law students and lawyers become thoroughly familiar with principles of
legal professionalism not currently covered by professional
responsibility courses in law schools, the MPRE, or continuing education
programs. The simplest way to achieve this in the State would be for the
Kansas Supreme Court to adopt a rule that all applicants to the Kansas
bar must have undergone instruction in professionalism topics as part of
their law school education. At a minimum, we suggest that the State
require completion of a one-credit-hour course in professionalism. This
could be added to existing courses in professional responsibility, many of
which are two-credit-hour courses. The supreme court could establish a
small committee of Kansas practitioners, judges, and law teachers to
develop a model curriculum for such a course. Second, either the MPRE
or the essay portion of the Kansas bar examination should test principles
of legal professionalism. Finally, the current two-hour ethics continuing
education requirement should be expanded to three hours, one hour of
which would focus on legal professionalism.
All of these changes would be relatively simple and inexpensive to
implement. The adoption of these educational requirements would not
only ensure that every law student and member of the bar had knowledge
of the basic principles of legal professionalism, but would also make it
clear that the legal profession places a high value on such principles.
B. Existing Mechanisms to Enforce Professionalism
Whenever there are discussions of declining standards of
professionalism in the Kansas bar, someone suggests that existing rules
and laws do not, and will not, provide effective methods of regulating
unprofessional behavior unless it is clearly proscribed by the Kansas
37. KAN. SUP. CT. R. 709(n).
38. KAN. SUP. CT. R. 802(a).
422 [Vol. 60
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Rules. We believe that this is untrue. In fact, judges-particularly in
their power to hold attorneys in contempt-have substantial ability to
stop and even punish unprofessional behavior by lawyers, irrespective of
the Kansas Rules. Further, an expansive view of several of the
provisions contained in the Kansas Rules would permit their use in
regulating unprofessional behavior.
1. Judicial Power
Judges have substantial power to regulate lawyers through their
ability to deny motions, apply sanctions through their orders of
contempt,39 and, in the case of lawyers from outside the jurisdiction,
deny or revoke petitions to be admitted pro hac vice.40 While judges
should not overuse these powers, they may employ them to maintain
appropriate standards of professionalism among the bar. A few
examples will demonstrate this.
Perhaps a favorite example of the appropriate use of judicial power
to maintain standards of civility at the bar is the recent order by Judge
Melgren in Jayhawk Capital Management, LLC v. LSB Industries, Inc.41
One of the lawyers asked for a brief continuance in the litigation so that
he could travel home to Dallas to be with his wife when she gave birth to
their first child.42 Opposing counsel refused to agree to the
continuance.43 Judge Melgren, astonished at what he perceived to be the
utter callousness of opposing counsel in the matter, took the opportunity
to address the issue of civility at the bar.
Regrettably, many attorneys lose sight of their role as professionals,
and personalize the dispute; converting the parties' disagreement into a
lawyers' spat. This is unfortunate, and unprofessional, but sadly not
uncommon. Before the Court, however, is an uncommon example of
this unhappy trend.
39. See KAN. STAT. ANN. §§ 20-1201 to -1206 (2007) (outlining types of contempt and
procedure for finding it). See generally Rogers, supra note 14 (giving a national view of the use of
judicial powers and existing regulations to control bad conduct by lawyers).
40. See KAN. Sup. CT. R. 116 (explaining the process of admitting an out-of-state attorney).
41. Order on Motion to Continue, Jayhawk Capital Mgmt., LLC v. LSB Indus., Inc., No. 08-
2561-EFM (D. Kan. Apr. 12, 2011), ECF No. 163.
42. Id. at 1-2.
43. Id. at 2.
2011] 423
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[T]his judge is convinced of the importance of federal court, but he has
always tried not to confuse what he does with who he is, nor to distort
the priorities of his day job with his life's role. Counsel are encouraged
to order their priorities similarly.44
Judge Melgren then granted the motion for a continuance, congratulated
the young lawyer and his wife, and sent him home to witness the blessed
event.4 5 Not surprisingly, Judge Melgren's decision in this matter was
lauded widely and even merited positive mention in the New York
Times.46 Simply by exercising good judgment in his decision, Judge
Melgren struck a blow for civility at the bar.
The District Court for the Northern District of Texas took an even
stronger position in Dondi Properties Corp. v. Commerce Savings &
Loan Ass'n.47  In this 1988 case, the court adopted the Dallas Bar
Association's Guidelines of Professional Courtesy and Lawyer's Creed
as a standard of practice for itself.48  The court accompanied this
adoption with a strong statement of its views on incivility at the bar:
Attorneys who abide faithfully by the standards we adopt should
have little difficulty conducting themselves as members of a learned
profession whose unswerving duty is to the public they serve and to the
system of justice in which they practice. Those litigators who persist in
viewing themselves solely as combatants, or who perceive that they are
retained to win at all costs without regard to fundamental principles of
justice, will find that their conduct does not square with the practices
we expect of them. Malfeasant counsel can expect instead that their
conduct will prompt an appropriate response from the court, including
the range of sanctions the Fifth Circuit suggests in the Rule 11 context:
"a warm friendly discussion on the record, a hard-nosed reprimand in
open court, compulsory legal education, monetary sanctions, or other
measures appropriate to the circumstances."
... We do intend .. . to take the steps necessary to ensure that justice is
not removed from the reach of litigants either because improper
litigation tactics interpose unnecessary delay or because such actions
increase the cost of litigation beyond the litigant's financial grasp.49
44. Id. at 1, 3.
45. Id. at 3.
46. John Schwartz, Judge Rules for Counsel, Saying Baby Comes First, N.Y. TIMES, Apr. 14,
2011, at Al5.
47. 121 F.R.D. 284 (N.D. Tex. 1988) (en banc) (per curiam).
48. Id. at 287.
49. Id. at 288 (citation omitted) (quoting Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 878
(5th Cir. 1988) (en banc)).
424 [Vol. 60
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The threat of financial sanctions for unprofessional conduct made in
Dondi was realized in the District Court for the Southern District of
Florida in Judge Middlebrooks' decision in the 2000 case of Lee v.
American Eagle Airlines, Inc.50 In Lee, the lawyers representing the
plaintiff utilized highly disruptive tactics during the trial, including what
the judge characterized as "lash[ing] out" at him, "tossing a pen,"
"rolling [their] eyes," making "exasperated looks at the ceiling," "flailing
of arms," and "exclaiming 'This is outrageous."' 5 ' Throughout the trial,
Judge Middlebrooks cautioned the lawyers to modify their behavior, but
they failed to do so. 5 2  Judge Middlebrooks' response to what he
perceived as highly unprofessional behavior in his courtroom was
ingenious. He did not penalize the plaintiff for his counsels' behavior.
Instead, when it came time to award attorneys' fees to the plaintiffs
lawyers, Judge Middlebrooks reduced that award "based upon
misconduct of counsel" by $358,423.20." He also transmitted a copy of
his order to the Florida bar's disciplinary authorities. 54  Judge
Middlebrooks' message to the Florida bar was clear and unambiguous:
behave appropriately or face a heavy financial penalty.
Judge Middlebrooks' sense of outrage expressed in Lee is echoed in
an addendum to a 1994 opinion of the Supreme Court of Delaware in
Paramount Communications, Inc. v. QVC Network, Inc. authored by
Chief Justice Veasey. 5  The court in this case was confronted by
behavior in deposition practice that it considered inappropriate.5 6 The
subject of the court's ire was a prominent Texas litigator, Joe Jamail.57
The court, interestingly, raised the issue of Mr. Jamail's behavior sua
sponte and did so because, in Judge Veasey's words, "[t]he issue of
discovery abuse, including lack of civility and professional misconduct
during depositions, is a matter of considerable concern to Delaware
courts and courts around the nation."58  The court was specifically
concerned with an incident involving Mr. Jamail, which it characterized
as demonstrating "such an astonishing lack of professionalism and
50. 93 F. Supp. 2d 1322, 1330-31 (S.D. Fla. 2000).
51. Id.at 1327.
52. Id. at 1325-29.
53. Id. at 1336.
54. Id.
55. 637 A.2d 34, 51-57 (Del. 1994).
56. Id. at 52.
57. Id. at 52-53.
58. Id. at 52 & n.23.
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civility that it is worthy of special note here as a lesson for the future-a
lesson of conduct not to be tolerated or repeated."5 9
The Addendum reprints a portion of the transcript of a deposition in
which Mr. Jamail was present as counsel for the deponent although he
"did not otherwise appear" in the litigation nor had he been admitted to
practice pro hac vice.60  Without question, some of Mr. Jamail's
comments pushed the limits of civility. For example, after telling his
client not to answer a question, Mr. Jamail responded to pleas from
opposing counsel with "Don't 'Joe' me, asshole. You can ask some
questions, but get off of that. I'm tired of you. You could gag a maggot
off a meat wagon." 61 The Delaware Supreme Court expressed doubt
about its disciplinary authority over Mr. Jamail because he was neither a
member of the Delaware bar nor admitted to practice pro hac vice.62
Further, none of the parties had complained of Mr. Jamail's actions.63
The court, however, refused to let his actions go unnoticed.
[T]he Court finds this unprofessional behavior to be outrageous and
unacceptable. If a Delaware lawyer had engaged in the kind of
misconduct committed by Mr. Jamail on this record, that lawyer would
have been subject to censure or more serious sanctions. ... Under some
circumstances, the use of the trial court's inherent summary contempt
powers may be appropriate.
Having recognized the uncertainty as to whether the Delaware
Supreme Court had the power to sanction Mr. Jamail for his actions, the
court did feel empowered to look to any future activities by Mr. Jamail in
Delaware or involving cases before the Delaware courts, stating:
[C]onsideration will be given to the following issue[] for the
future[:] ... whether or not it is appropriate and fair to take into
account the behavior of Mr. Jamail in this case in the event application
is made by him in the future to appear pro hac vice in any Delaware
proceeding.65
It seems clear that this was not an idle threat by the court.
59. Id. at 52.
60. Id.
61. Id. at 54.
62. Id. at 52-53.
63. Id. at 54-55.
64. Id. at 55 (citing In re Butler, 609 A.2d 1080, 1082 (1992) (en banc)).
65. Id. at 56.
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In all of the cases cited above, courts fashioned creative sanctions to
impose on lawyers for their unprofessional conduct when such conduct
was not, for some reason, directly subject to the jurisdiction's adopted
rules of professional conduct. These decisions illustrate how a judge
who is willing to exercise his inherent authority can, in fact, sanction
uncivil and unprofessional conduct. Additionally, the decisions can be
used as models for a judicial, non-regulatory mechanism to reduce such
inappropriate behavior.
2. Expanded Use of the Rules of Professional Conduct
Although many lawyers and legal scholars probably believe that the
rules of professional conduct, including the Kansas Rules, do not provide
a means to control unprofessional behavior at the bar, an expansive view
of several provisions may contradict this. The primary focus of the rules
of professional conduct is not on lawyer-lawyer relations and behavior.
There are, however, several provisions that touch upon this and that have
been used to discipline lawyers who have acted unprofessionally.
For instance, in Kansas, Rule 3.5(d) requires that a lawyer refrain
from "engag[ing] in undignified or discourteous conduct degrading to a
tribunal,"6 6 and Rule 4.4 requires that a lawyer "[r]espect [the] [r]ights of
[t]hird [p]ersons."67 Rule 8.4(c) prohibits a lawyer from "engag[ing] in
conduct involving dishonesty, fraud, deceit or misrepresentation," 8 and
Rule 8.4(d) prohibits a lawyer from "engag[ing] in conduct that is
prejudicial to the administration of justice." 69 These provisions have
potentially broad scope and may control lawyer behavior not otherwise
regulated by the other provisions of the Kansas Rules. These rules may
certainly be used to control grossly unprofessional behavior by lawyers
in a court or in a legal proceeding supervised by a court.
An example of such a use is In re Estiverne, a 1999 decision of the
Louisiana Supreme Court.70 The lawyer's behavior in Estiverne was
outrageous, if not bizarre. At a deposition in an opposing lawyer's
office, Mr. Estiverne asked his opponent to "'step outside' and settle the
matter 'man to man."' 7 1 He then left and, a bit later, returned with a
66. KAN. RULES OF PROF'L CONDUCT R. 3.5(d) (2007), in KAN. SUP. CT. R. 226.
67. Id. at R. 4.4.
68. Id. at R. 8.4(c).
69. Id. at R. 8.4(d).
70. 741 So. 2d 649 (La. 1999) (per curiamn).
71. Id. at 650.
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gun.72  Not surprisingly, the Supreme Court of Louisiana held such
behavior to be a violation of Rules 4.4 and 8.4 of the Louisiana Rules of
Professional Conduct. 73
The Supreme Court of South Carolina also found its version of Rules
4.4 and 8.4 useful in addressing unprofessional behavior by a lawyer in a
deposition in In re Golden, a 1998 decision.74 The respondent in this
case had engaged in quite offensive behavior in several depositions.
Among the more outrageous of these comments was that the deponent
was "a mean-spirited, vicious witch" and that "[w]hat we need for her is
a big bag to put her in without the mouth cut out."75 The court found that
the use of such language clearly violated Rules 4.4 and 8.4 and imposed
a public reprimand on the respondent attorney.
The same two rules have been used with similar effect in Kansas.
For example, in one case, the respondent made repeated allegations of
misconduct on the part of court personnel, including the claim that he
had been denied access to court records. 77  "Throughout his
representation in the Baby C case, Respondent filed numerous pleadings
containing serious allegations of misconduct by opposing counsel,
members of the judiciary, Shawnee County District Court employees,
and Kansas Court of Appeals staff."7 8
In a separate matter also examined by the court, the respondent
"became loud and angry" at court personnel. 79 The Court identified one
memorandum in which the respondent purported to
establish "a pattern and practice indicative of training and management
of Kansas Judicial Branch employees that emphasizes enforcing
interests of an administrative or bureaucratic nature at the expense of
injuring fundamental Due Process rights of Kansas citizens who are
guaranteed a republican form of government." He further accused
judicial branch employees of "demoralizing" him and his client by
"consistently obstructing this appeal."80
72. Id.
73. Id. at 653-54.
74. 496 S.E.2d 619 (S.C. 1998) (per curiam).
75. Id. at 621.
76. Id. at 622-24.
77. In re Landrith, 124 P.3d 467, 471 (Kan. 2005) (per curiam).
78. Id. at 472.
79. Id. at 473.
80. Id. (quoting the "Memorandum of Law" filed by the respondent).
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In his "Motion for Voluntary Withdraw [sic] and Disclosure of Costs,"
the respondent further stated "that judicial branch employees continually
obstructed justice; that Carol Green, Clerk of the Appellate Courts,
justified denial of access to the public record; that [his client's] due
process rights were violated 'in this appeal by the agencies of the State of
Kansas-Judicial Branch and the City of Topeka."' 8  In disbarring the
respondent for the foregoing acts, as well as a litany of other actions, the
Kansas Supreme Court affirmed the hearing panel's findings that this
conduct violated Kansas Rules 4.4 and 8.4.82
In In re Black, the Kansas Supreme Court ordered an indefinite
suspension of an attorney for his unprofessional conduct.83 Findings
included a violation of Kansas Rule 4.4 based on the lawyer's "outburst"
towards an opposing party, which included the following:
[Respondent], in anger, told [opposing counsel] he should not be
wearing his uniform, that [opposing counsel] was a disgrace to the
Kansas Army National Guard and to the United States Army, and that
[respondent], if he had on his uniform, would have an eagle on his
shoulders and he could put [opposing counsel] at attention such that
[opposing counsel] could not speak.84
In yet another Kansas case, the respondent sent a letter to opposing
counsel, which the court characterized as "vicious, offensive, and
extremely unprofessional." Moreover, the "letter employed a number
of vile and unprintable epithets."86 In affirming a finding that this
conduct violated Kansas Rule 8.4(g)-which governs conduct reflecting
adversely on the lawyer's ability to practice law-the Kansas Supreme
Court set forth a thoughtful explanation of how the Kansas Rules can and
should regulate and punish unprofessional conduct.
Suffice it to say that the correspondence to [opposing counsel] is
conduct that adversely reflects on [respondent's] fitness to practice law.
A lawyer should be able to write a letter to an opposing party or a party
with an adverse interest and intelligently communicate his or her
position without the use of profane, offensive, or derogatory language.
"[A]ttomeys are required to act with common courtesy and civility at
81. Id. at 474.
82. Id. at 485-86.
83. 941 P.2d 1380, 1387 (Kan. 1997) (per curiam).
84. Id. at 1382.
85. In re Gershater, 17 P.3d 929, 931 (Kan. 2001) (per curiam).
86. Id.
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all times in their dealings with those concerned with the legal process."
"Vilification, intimidation, abuse and threats have no place in the legal
arsenal.". "An attorney who exhibits the lack of civility, good manners
and common courtesy ... tarnishes the entire image of what the bar
stands for."87
Rule 8.2-which prohibits lawyers from making false statements
about a judge's integrity-was found violated in a case where the
respondent wrote a letter to the judge in his case, which included
statements that a decision of the judge was "ridiculous," that the judge
had an "underlying incompetence" and was acting "like a robot," and
that told the judge "[y]ou simply don't have what is required to decide
the kind of issues that you were presented with in this case.
Lastly, a letter sent by a Kansas lawyer to a client was deemed to be
"unprofessional, rude, and written to embarrass" another person.89 This
was found to violate Kansas Rule 8.4 and merited a public censure.90
The foregoing cases demonstrate that the Kansas Rules can and
should be used to control and regulate unacceptable lawyer conduct in
formal proceedings, including depositions, and in their dealings with
courts, opposing counsel, and parties. This is a powerful tool to control
unprofessional behavior by lawyers, which, when used within
constitutional limits, can do much to eliminate rude and discourteous
comments. Kansas Rule 4.4(a) also holds out a promise that it can be
used to deal with lawyer dilatoriness by providing that "[i]n representing
a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person."91
Unnecessary delay is often cited by lawyers in discussions about
what unprofessional behavior is most disturbing. Failure to return
telephone calls and messages in a timely manner, failure to schedule
necessary conferences in a timely manner, and failure to appear at
scheduled meetings thereby necessitating rescheduling at a later date are
87. Id. at 935-36 (citations omitted) (quoting In re Vincenti, 554 A.2d 470, 474 (N.J. 1989)
(per curiam); In re Mezzacca, 340 A.2d 658, 659 (N.J. 1975) (per curiam); In re McAlevy, 354 A.2d
289, 291 (N.J. 1976) (per curiam)). A similar, though less colorful, accusatory letter was found to
violate Kansas Rule 4.4 in In re Comfort, 159 P.3d 1011, 1021 (Kan. 2007) (per curiam). Another
"unprofessional" letter was deemed to be a violation of Kansas Rule 4.4 in In re Pyle, 91 P.3d 1222,
1230-31 (Kan. 2004) (per curiam).
88. In re Arnold, 56 P.3d 259, 263-64 (Kan. 2002) (per curiam).
89. In re Bryan, 61 P.3d 641, 644 (Kan. 2003) (per curiam) (quoting the hearing panel's finding
of fact).
90. Id. at 658,661.
91. KAN. RULES OF PROF'L CONDUCT R. 4.4(a) (2007), in KAN. SUP. CT. R. 226.
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2011] THE REGULATION OF COURTESY 431
all behaviors that could violate Kansas Rule 4.4(a) if sufficiently serious
to justify sanction.
V. CONCLUSION
The adoption of a professionalism code with prescribed penalties and
an associated administrative procedure entails numerous problems.
Among these, the administrative burden, the danger of over-regulation,
and the encroachment on First Amendment rights all argue against such a
code. While concerns about unprofessional behavior at the bar are
certainly valid in Kansas, we would argue strongly that the problem does
not require a new regulatory scheme and code. Instead, as suggested
above, a new focus on professionalism education, combined with a more
vigorous use of existing judicial power and an expansive approach to the
Kansas Rules of Professional Conduct, should do much to ameliorate the
situation.
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VI. APPENDIX
A Lawyer's Creed ofProfessionalism 92
Preamble
As a lawyer, I must strive to make our system of justice work fairly
and efficiently. In order to carry out that responsibility, not only will I
comply with the letter and spirit of the disciplinary standards applicable
to all lawyers, but I will also conduct myself in accordance with the
following Creed of Professionalism when dealing with my client,
opposing parties, their counsel, the courts, and the general public.
A. With respect to my client
1. I will be loyal and committed to my client's cause, but I will not
permit that loyalty and commitment to interfere with my ability to
provide my client with objective and independent advice;
2. I will endeavor to achieve my client's lawful objectives in business
transactions and in litigation as expeditiously and economically as
possible;
3. In appropriate cases, I will counsel my client with respect to
mediation, arbitration, and other alternative methods of resolving
disputes;
4. I will advise my client against pursuing litigation (or any other
course of action) that is without merit and against insisting on tactics
which are intended to delay resolution of the matter or to harass or
drain the financial resources of the opposing party;
5. I will advise my client that civility and courtesy are not to be equated
with weakness;
6. While I must abide by my client's decision concerning the objectives
of the representation, I nevertheless will counsel my client that a
willingness to initiate or engage in settlement discussions is
consistent with zealous and effective representation.
92. Originally printed in Badgerow, supra note 19, at 32-33. Slight grammatical and structural
changes have been made to the original for this Essay. The "Lawyers' Pledge of Professionalism"
section has been omitted from this Appendix. It can be found at the end of the original printing of
the Creed. Id. at 33-34.
432 [Vol. 60
THE REGULATION OF COURTESY
B. With respect to opposing parties and their counsel
1. I will endeavor to be courteous and civil, both in oral and in written
communications;
2. I will not knowingly make statements of fact or of law that are
untrue;
3. In litigation proceedings, I will agree to reasonable requests for
extensions of time or for waiver of procedural formalities when the
legitimate interests of my client will not be adversely affected;
4. I will endeavor to consult with opposing counsel before scheduling
depositions and meetings and before rescheduling hearings, and I
will cooperate with opposing counsel when scheduling changes are
requested;
5. I will refrain from utilizing litigation or any other course of conduct
to harass the opposing party;
6. I will refrain from engaging in excessive and abusive discovery, and
I will comply with all reasonable discovery requests;
7. I will refrain from utilizing delaying tactics;
8. In depositions and other proceedings, and in negotiations, I will
conduct myself with dignity, avoid making groundless objections,
and refrain from engaging in acts of rudeness or disrespect;
9. I will not serve motions and pleadings on the other party, or his
counsel, at such a time or in such a manner as will unfairly limit the
other party's opportunity to respond;
10. In business transactions, I will not quarrel over matters of form or
style, but will concentrate on matters of substance and content;
11. I will clearly identify, for other counsel or parties, all changes that I
have made in documents submitted to me for review.
C. With respect to the courts and other tribunals
1. I will be a vigorous and zealous advocate on behalf of my client,
while recognizing, as an officer of the court, that excessive zeal may
be detrimental to my client's interests as well as to the proper
functioning of our system of justice;
2. Where consistent with my client's interests, I will communicate with
opposing counsel in an effort to avoid litigation and to resolve
litigation that has actually commenced;
3. I will voluntarily withdraw claims or defenses when it becomes
apparent that they do not have merit or are superfluous;
2011] 433
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4. I will refrain from filing frivolous motions;
5. I will make every effort to agree with other counsel, as early as
possible, on a voluntary exchange of information and on a plan for
discovery;
6. I will attempt to resolve, by agreement, my objections to matters
contained in my opponent's pleadings and discovery requests;
7. When scheduled hearings or depositions have to be canceled, I will
notify opposing counsel and, if appropriate, the court (or other
tribunal) as early as possible;
8. Before dates for hearings or trials are set-or, if that is not feasible,
immediately after such dates have been set-I will attempt to verify
the availability of key participants and witnesses so that I can
promptly notify the court (or other tribunal) and opposing counsel of
any likely problem in that regard;
9. In civil matters, I will stipulate to facts as to which there is no
genuine dispute;
10. I will endeavor to be punctual in attending court hearings,
conferences, and depositions;
11. I will at all times be candid with the court.
D. With respect to the public and to our system ofjustice
1. I will remember that, in addition to commitment to my client's cause,
my responsibilities as a lawyer include a devotion to the public good;
2. I will endeavor to keep myself current in the areas in which I practice
and, when necessary, will associate with, or refer my client to,
counsel knowledgeable in another field of practice;
3. I will be mindful of the fact that, as a member of a self-regulating
profession, it is incumbent on me to report violations by fellow
lawyers of any disciplinary rule;
4. I will be mindful of the need to protect the image of the legal
profession in the eyes of the public and will be so guided when
considering methods and content of advertising;
5. I will be mindful that the law is a learned profession and that among
its desirable goals are devotion to public service, improvement of
administration of justice, and the contribution of uncompensated
time and civic influence on behalf of those persons who cannot
afford adequate legal assistance.
434 [Vol. 60