CIVILITY AMONG ATTORNEYS ? IS IT LOST ? I HOPE NOT!

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Is civility among attorneys lost forever, or perhaps eroded so much that there is no turning back?

Civility is the act of treating others with kindness, courtesy, politeness and pleasantry. http://www.merriam-webster.com/dictionary/civility. Rudeness, “Rambo” tactics, intimidation, yelling at witnesses, belittling the other side, threats and unpleasant behavior are not what we expect from those that represent us in legal matter, and represent us in a profession that is supposed to be above the fray.

Do clients’ expectations create this persona that has eroded civility in the legal field? I don’t know, but maybe it’s one reason for the growing trend of incivility among lawyers. Clients are looking for the “toughest gun in town”, “the pit bull”, “the hardnosed litigator”, or even “a shrewd attorney”. Does anyone look for an attorney that’s “honest”, “a deal maker”, “a fair and balanced negotiator”, or one that “catches more flies with honey than with vinegar”. Probably not! But why not look for those qualities. A “pit bull” connotes “aggression”, “destruction” and “anger”. Is that how clients want their problems solved? Isn’t rational thought, professionalism, fairness, and civility a better way to bring an already unpleasant situation closer to resolution?

One of the fundamental goals of our legal system is to resolve disputes peacefully, rationally, and efficiently, and to eschew uncivil, abrasive, hostile, or obstructive conduct during the process, the behavior of some within the profession seems more aptly fit for a Hollywood courtroom TV show rather than a forum of order and civility.

See Final Report of the Committee on Civility of the Seventh Federal Judicial Circuit, 143 F.R.D. 441 (1992); Justice Michael J. Wilkins, Supreme Court Adopts Professionalism Standards, 16 UTAH B.J. 31, 31–32 (2003); Although there is “an increasing lack of civility among litigating lawyers in our courts,” Paul L. Friedman, Taking the High Road: Civility, Judicial Independence, and the Rule of Law, 58 N.Y.U.ANN. SURV. AM. L. 187, 187 (2001), such behavior, of course, is nothing new. See, e.g., Green v. Elbert, 137 U.S. 615, 624 (1891). 32 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 5:1].

Some courts and Bar Associations across the country have said that incivility in the profession that had come to bear from the quest for “zealous” representation began to be called into question. As noted in a law review article in 1994, “[z]ealous advocacy is the buzz word that is squeezing decency and civility out of the law profession.… [It is] the modern day plague which infects and weakens the truth finding process and makes a mockery of the lawyers’ claim to officer of the court status.” Kathleen P. Browe, Comment, A Critique of the Civility Movement: Why Rambo Will Not Go Away, 77 Marq. L. Rev. 751, 767 (1994). In response to the quest for more civilized dealings in the practice of law, in 2003 the Arizona Supreme Court eliminated the obligation of attorneys to be “zealous” advocates of their clients in favor of a duty to “act honorably” in furtherance of their client’s interests. See Ariz. R. S.Ct. 42. Indiana, Louisiana, Montana, Nevada, New Jersey, Oregon, and Washington have likewise omitted all references to zealousness in their rules, preambles, and commentaries. http://webster.utahbar.org/barjournal/2009/05/enforcing_civility_in_an_uncivilized_world.html.

Civility and courtesy among and from attorneys does not make one less competent or less qualified to advocate zealously on behalf of a client. Being the “toughest gun in town” does not make one a better negotiator in working out a favorable deal on behalf of a client, than an attorney who practices civility and courtesy while representing a clients’ interests.

I believe that clients suffer when civility is lost. Let me explain, under most circumstances, clients’ pay for everything we produce, think or contemplate on an hourly basis on their respective case. So each time we have to confirm an agreement with the other side in writing after a phone call, the client pays. Granted something’s need to be reduced to writing, however, such things as extensions in time to respond, unnecessary motions or discovery, or summaries of an understanding of procedural issues may not require a written understanding. However, when attorneys are not civil to each other and stand by their word, everything needs to be reduced to writing, which again, the client pays for. Trials take twice as long. Discovery becomes an exercise in warfare rather than a method of gathering information. Motions’ practice becomes a battle of “one upsmanship” rather than a necessary tool to move to resolution. All of which are at the cost and expense of the clients.

Fairness is about finding a middle ground. That can never be accomplished if the other side refuses to listen, or makes a mountain out of every non-issue mole hill. This only translates into further billing for the clients and a prolonged and protracted case, which becomes more expensive and turns into a “game” rather than an attempt to resolve an issue. I’m not saying don’t be the best advocate for your clients, I’m just saying that take into consideration what the end result will be and ask yourself, is my client better off if I take such a hard line position.

One publication described this uncivilized behavior as follows: “[l]awyers have altered the art of argument as a form of discourse into a battle, made trial a siege, and litigation a war.” http://www.law.uconn.edu/system/files/private/bills.pdf. Is this how we want to resolve disputes? Does every case require the battle armor, the artillery loaded and full scale warfare? That’s what happens when civility is lost.

I’ve observed that some attorneys, one that don’t have anything to prove because they are established and hence much more civil in their practice of the law and treatment of other attorneys. Whether this was a result of good mentoring or experience, it is refreshing and usually less costly for the client.

Others just choose to be more civil because they understand that clients may come and go, but the attorneys in any given county are always the same, and then you have those that are just completely uncivilized, rude and lack decorum and courtesy for anyone. The more seasoned attorneys understand the concept of “catching more flies with honey than with vinegar.” Those with something to prove, have not embraced that concept yet, and believe that being a “pit bull” is a way to establish yourself in the field. This behavior is a detriment to the profession and costly for the client. Many states are implementing civility codes. Seriously! You have to implement a behavior code? I find it amazing that its gotten so out of hand that this is where we are today.

More importantly, just because the clients hate each other doesn’t mean the lawyers have to act in the same fashion. Step above the fray! There is nothing wrong with being courteous and civil in all professional dealings while being a zealous advocate. The two are not opposing in thought and process.

Acting in a civil manner and disagreeing with opposing counsel, is a far cry from being disagreeable. Don’t be disagreeable. Clients fare much better with attorneys that are not disagreeable by nature. Providing effective representation does not require antagonistic or acrimonious behavior. When consistent with their clients’ interests, all attorneys should cooperate with the other side in an effort to avoid litigation and to resolve litigation that has already commenced, as that is in the best interests of the clients.

For instance, attorneys should agree to reasonable requests for extensions of time or for waiver of procedural formalities when the legitimate interests of the client will not be adversely affected. Typically, this is something that I don’t leave up to my clients as emotions create an obstacle for objectiveness, and I am always inclined to agree to reasonable requests for extensions of time as I never know when I may need one.

Let’s bring civility and courtesy back to the practice of law. Expect it from yourself, from those you work with and your clients should expect it as well.

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