Professionalism, Civility, and the Colorado Attorney's Oath
Professionalism and civility
Colorado expects more than minimum compliance with the Rules. The Colorado Attorney's Oath, taken at admission, commits the lawyer to support the constitutions of the United States and Colorado, faithfully discharge the duties of an attorney, and conduct oneself with integrity and civility. The Colorado Supreme Court and the Colorado Bar Association have adopted professionalism principles: courtesy to opposing counsel, candor to the tribunal, respect for court staff, and avoidance of abusive litigation tactics. Civility is not merely aspirational where conduct becomes harassment; Rule 4.4(a) prohibits using means with no substantial purpose other than to burden or harass a third person, and Rule 8.4(d) prohibits conduct prejudicial to the administration of justice.
Key rules
Rule 3.1 bars frivolous claims and defenses. Rule 3.3 requires candor toward the tribunal, including correcting false statements. Rule 3.4 prohibits obstructing access to evidence, altering documents, and making frivolous discovery requests. Rule 3.5 prohibits improper influence on judges and jurors. Rule 4.2 restricts communication with a represented person; Rule 4.3 addresses dealing with an unrepresented person. Rule 8.4(c) prohibits dishonesty, fraud, deceit, and misrepresentation.
Worked example
At a deposition, opposing counsel repeatedly calls the witness a 'liar' and threatens to report the witness to immigration authorities unless she answers. This is not zealous advocacy. The threat may violate Rule 4.4(a) by using means with no substantial purpose other than to intimidate, and it may violate Rule 8.4(d). The defending lawyer should object on the record, instruct the witness not to answer only if the question seeks privileged information or is otherwise improper, and consider a motion for a protective order. The deposition conduct can be raised with the court and, in serious cases, with OARC.
Traps that cost marks
- Equating incivility with effective advocacy; courts sanction abuses.
- Making personal attacks in briefs rather than addressing the legal issue.
- Communicating with a represented party about the case without counsel's consent.
- Treating the Attorney's Oath as a purely ceremonial statement; it reflects enforceable duties.