Question
Several lawyers have been criticizing me and telling me that I am too old to practice law and should retire. I do not want to retire. Are these statements acceptable behavior for a lawyer?
Answer
Statements that another lawyer is too old to work and should retire have no place in the practice of law unless the statements are based on legitimate concerns about the lawyer’s health. If a lawyer is suffering from a medical condition that affects the lawyer’s ability to practice law, such a statement might be appropriate but hopefully it would be more tactful.
Dean R. Dietrich, Marquette 1977, is the president-elect of the State Bar of Wisconsin. He is with the law firm of Weld Riley S.C., Wausau, and is past chair of the State Bar Professional Ethics Committee.
There is much discussion about civility in the practice of law and a great deal of finger pointing toward other lawyers. I think this is not a generational issue but there is a belief by many lawyers that negativism and attacking opponents are strategies that are vital to be successful. I believe the contrary. I think that dealing with other advocates in a professional manner is necessary and appropriate to preserve the reputation of the profession.
Unfortunately, there is very little that can be done under the Rules of Professional Conduct to address unruly behavior. Under SCR 20:8.4(g), conduct that violates the attorney’s oath is a violation of the rules. The attorney’s oath is in SCR 40.15 and states that lawyers must not engage in “all offensive personality.” The offensive-personality standard has been used in several cases to discipline lawyers for inappropriate conduct, although doing so is not common.
It is also a violation of the Rules of Professional Conduct if a lawyer engages in behavior that has no purpose other than to embarrass, delay, or burden a third person when the lawyer is representing a client. SCR 20:4.4 Respect for Right of Third Persons provides as follows:
“(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a 3rd person, or use methods of obtaining evidence that violate the legal rights of such a person.”
This rule might not specifically address your situation but provides some guidance about the conduct of lawyers.
It is also a violation of the Rules of Professional Conduct to engage in behavior, while acting as a lawyer, that is designed to harass another person. SCR 20:8.4(i) provides as follows:
“It is professional misconduct for a lawyer to:
…
(i) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer’s professional activities. Legitimate advocacy respecting the foregoing factors does not violate par. (i).”
Harassing someone based on the person’s age might be considered misconduct under this rule. It would be very challenging to prove the underlying facts, but the harassment could form the basis for some type of disciplinary proceeding. It would be better, of course, if lawyers avoided harassing other people because personal attacks do not help move clients’ claims forward.
» Cite this article: 96 Wis. Law. 37 (April 2023).
