Just Because You Can Doesn’t Mean You Should: Reconciling Attorney Conduct in the Context of Defamation with the New Professionalism
Nova Law Review
The Florida Bar has recently proposed enforceable professionalism standards. While many states have professionalism codes they remain aspirational and unenforceable. Florida’s move toward enforceable professionalism standards is laudable, but raises concerns about how moving a “step above” the floor of the rules of professional conduct will affect advocacy and practice.
This paper examines how a shift to enforceable professionalism standards may impact absolute immunity. The paper suggests that as other states consider similar standards or simply how to better policy professionalism, perhaps it is time to also consider how discipline is imposed with respect to defamatory statements that are otherwise protected by absolute immunity and whether some qualification of the immunity is appropriate in disciplinary proceedings when considered in the context of an attorney’s conduct.
Heather M. Kolinsky, Just Because You Can Doesn’t Mean You Should: Viewing an Attorney’s Liability for Defamation During Litigation through the Lens of Professionalism, 37 Nova L. Rev. 113 (2012).