Are 'offensive tactics' ever a good idea? Gorsuch comments on ABA model rule

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Justice Neil M. Gorsuch.

Corrected: Justice Neil M. Gorsuch called for civility during an appearance on Saturday, while emphasizing that the push for civility shouldn’t interfere with the expression of diverse viewpoints.

Gorsuch said that civility should not interfere with free speech, and pointed to efforts to suppress debate on college campuses, report the Associated Press and the National Law Journal (sub. req.), which had more extensive coverage of his remarks.

“I’m a great believer in the First Amendment. It worries me when young people today at universities are not able to express themselves,” Gorsuch said. “When civility goes so far as to suppress disagreement, you’ve gone too far.”

Gorsuch stressed the need for civility in the legal profession and expressed reservations about a comment to Rule 1.3 of the ABA Model Rules of Professional Conduct, according to the National Law Journal account. The model rule requires lawyers to act “with reasonable diligence and promptness in representing a client.”

The comment to the model rule reads, “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics.” The phrasing “worries me,” Gorsuch said, because it implies that offensive tactics, while not required, could sometimes be “a very good idea.”

Gorsuch said that lawyers should advise clients who want to use “junkyard dog” tactics that it doesn’t help. If the client persists, the lawyer may want to consider whether to fire the client. “The rewards of an ethical practice are a lot more profound than the dollars and cents, the mansions, the cars,” he said.

The National Law Journal covered Gorsuch’s remarks on another subject: the kindness of people who offered their support during his confirmation hearings. He recalled one person who sent him a package that was “inspected, radiated, irradiated.” The package was found to be safe and Gorsuch opened it up. It contained a pair of socks and a note.

The sender watched the confirmation hearings on TV. “You looked like you needed a new pair of socks,” the note read.


Story revised at 11:50 a.m. to correctly report that Gorsuch said an ABA model rule comment worries him because it implies that offensive tactics could sometimes be a good idea. The original, incorrect version of this story misreported that Gorsuch said offensive tactics could sometimes be a good idea.

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