Professionalism: Dealing with Unprofessional Conduct in Bankruptcy

University of Memphis Law Review, The, Spring 2006 by Kennedy, David S, Lantin, Vanessa A, York, Alissa

I. INTRODUCTION

"There is no nobler profession than that of the law ...."1

"Law ... I admire as a science; it becomes tedious and embarrassing only when it degenerates into a trade."2

In addition to having to attract and service clients, and thereafter generate and collect sufficient fees in order to simultaneously pay law office overhead expenses and establish an acceptable personal level of income, attorneys also have extraordinary and often-times far-reaching ethical and professional duties and responsibilities. Failure to perform these ethical and professional duties adequately may result in serious, adverse consequences. Attorneys have specific professional duties and responsibilities to provide competent and zealous legal representation and counseling to their clients. Concomitantly, they serve as respectful and vigilant officers of the court. Without proper balance and good habits in their professional and personal lives, unwary, oblivious, or uncaring attorneys face serious potential pitfalls and traps-including possible disciplinary action.3

Attorneys who practice in the United States bankruptcy courts ("bankruptcy attorneys") must abide by all generally applicable non-bankruptcy model rules and standards of professionalism and ethical behavior. Bankruptcy attorneys also must adhere to the requirements and limitations of the Bankruptcy Code ("Code"), the Federal Rules of Bankruptcy Procedure, and applicable local rules and procedures. Although bad manners alone will not trigger professional disciplinary action, it is axiomatic that certain ill-mannered acts indeed rise to the level of unacceptable professional conduct. For example, a bankruptcy attorney who exhibits unduly contentious, bellicose, and "in your face" advocacy in the practice of bankruptcy law-including bad faith or unprofessional conduct during the course of litigation, discovery, arbitration, or mediation-crosses the boundary line of acceptable standards of conduct. Bankruptcy courts will not condone or tolerate unprofessional or bad faith conduct or unethical attorney behavior arising out of a case or proceeding under the Code, whether inside or outside the bankruptcy courtroom. Bankruptcy courts must vigorously discourage and successfully deter such inappropriate behavior.

All attorneys should engage in acceptable ethical and professional behavior at all times and places, and should demonstrate appropriate competence, stability, and demeanor.4 Failure to meet these high ethical and professional standards may result not only in attorney disciplinary proceedings, but also in irreversible damage to an attorney's professional and personal reputation. Attorney disciplinary actions include possible disbarment, suspension, censure, reprimand, removal as attorney of record from a particular case or proceeding, and disgorgement or reduction of fees, expenses, or both.

It has been the experience of the co-authors that the hearts and minds of the vast majority of bankruptcy attorneys are in the right place. Overwhelmingly, attorneys earnestly seek to properly serve the legal profession, their clients, the court, and the public. Despite clear ethical rules and standards, a few attorneys do not adhere sufficiently to them. This article will address different types of unprofessional or unethical conduct, and also will suggest and discuss various responsive approaches to such conduct in bankruptcy cases and proceedings. More specifically, this article addresses the following selected topics:

* professionalism in bankruptcy practice and the attorney disciplinary process;

* personal attacks and inappropriate statements made by counsel during oral arguments or negotiations;

* attorney conduct arising out of discovery disputes and how and when to bring such disputes to the attention of the bankruptcy court;

* unsupported "lawyer testimony" during oral arguments;

* cloaking improper conduct or communications from the view of the bankruptcy court under the guise of "settlement negotiation;" and

* utilization by counsel of self-serving written correspondence and e-mails as exhibits to pleadings.

II. PROFESSIONALISM IN THE PRACTICE OF BANKRUPTCY LAW AND THE ATTORNEY DISCIPLINARY PROCESS: ADDRESSING UNACCEPTABLY AGGRESSIVE OR ABUSIVE BEHAVIOR BY ATTORNEYS IN BANKRUPTCY CASES AND PROCEEDINGS

Attorneys should guardedly and zealously protect their professional and personal reputations. At the same time, they should not only protect the best interests of their clients, but also foster, promote, and protect the integrity of the justice system as a whole. An inappropriate moral lapse or professional misstep can result in devastatingly adverse consequences to an attorney or judge that could prove difficult or near impossible to overcome. In some instances, such an inappropriate lapse may become the defining moment of a both a personal and professional reputation. One splitsecond misjudgment may produce a lasting tragedy.

It is said that "the law is a jealous mistress."5 Although, the rigorous demands of a law practice can be difficult and quite exacting at times, incivility and unprofessional attorney conduct are nonetheless unacceptable responses to such demands. Attorneys, as public citizens, also have a responsibility to promote the public good while appropriately representing the legal profession. Additionally, "[a]s [an] advocate, a lawyer zealously asserts the client's position under the rules of the adversary system."6