Legally permissible, genuinely moral, and socially acceptable conduct for lawyers is called “professional conduct,” and their opposites are called “unprofessional.” There are laws governing these matters. There are disciplinary rules on nearly all of the latter (if not all legal rules); There are the MODEL RULES OF THE ABA, and they play an influential role even in court decisions, though they are not part of the law. Their legal decisions include decisions of disciplinary boards and the state supreme court. There are pledges and creeds that are not quite the law, e.g. decisions from other states. There are customs and traditions; there are treatises; and there is the RESTATEMENT OF THE LAW OF LAWYERING (THIRD) (2000), as well as other RESTATEMENTS.
I taught the topics arising out of the general idea of lawyer foul-ups, in several types of courses, at three law schools, and Continuing Legal Educations seminars, plus some court-required courses that included legal ethics. There are many case books, and law school textbooks, several of which focus on legal ethics and lawyer responsibility. In Texas, the Supreme Court has ordered all starting lawyers to take a course that is partially about this topic. For example, there is the aging volume, still very usable in law school, Wolfram, MODERN LEGAL ETHICS (1986).
AUTHOR HUBRIS: I myself have prepared several “editions” of a single page I allege to given a quicky general summary of legal ethics, etc., and have claimed that if a lawyer thinks about these general guideline-principles before acting or omitting, s/he is very unlikely to commit a disciplinary offense. I have given many lectures based on that single page. People have told me that they have pinned it up in their offices (or done things like that) and have found it helpful. (On the other hand, the well-known Dean of a significant law school who was completing his CLE requirements, complained that the lecture and the sheet were fit for lawyer-kindergartners.) That sheet, The Eleven Commandments of Legal Ethics is one of my early posts in this category—MSQ
A general discussion of professionalism is not the point of this blog. Instead, my point here is on the propositions about civility. I like it. I even love it. I appreciate it. I think it is part of the human ideal. At the same time, its relationship to professionalism, as a legal concept, is not a simple one. In fact, it is a bit distant, except at the level of rhetoric. Thus, interestingly, it is not in the index of the Hazard-Hodes-Javis current treatise, THE LAW OF LAWYERING (THIRD) (2013), and therefore probably not in the previous editions. The same is true of the RESTATEMENT, although “Civil Disobedience” is there.
The general understanding is that civility is a good thing, that it enhances and preserves the profession lawyers are obligated to embrace, and it is a prudent practice. Real professionals will always do that. Civility is owed to judges and other lawyers. Secondarily, it is owed to clients–certainly your own. Significantly, many non-lawyer institutions have formal rules against incivility, and sometimes institutional “regulations” cover their in-house lawyers.
Civility is often thought to be principally good mannered, restrained, and to a considerable extent, avoid fiery anger, at least in groups. The low-end appearance of respect may include the absence of contempt, though this last one is not so clear.
Vigor is perfectly consistent with being civil. Vigor never includes asshole-ery. It may even require–or, at least permit–manifesting a lack of respect and contempt itself, for example, in vigorous cross-examination. Civility can be found in all sorts of places; the most prominent are writings (including the electronic versions), speaking, tone, facial glances, and a more general look. (Like contempt, these ideas would apply to certain types of witnesses and then to lawyers who behave in certain ways. Activities that lead to disbarment do not require expressions of public contempt. Consider the recent case of the Kentucky Supreme Court involving the contemptible Chessler.) Hatred is not in and of itself incivility, although it probably must be kept hidden, or nearly so. The will to control is not incivility, so long as the resistance of others to it does not trigger tirades or behavior of the sort. One interesting question is this:
What is the connection between being civil and being civilized? Consider snarling. It is certainly an example of incivility. Is it also an example of being uncivilized? Assassination, in the modern world, is generally thought to be uncivilized. But is it always an example of incivility? What about the desire of a bitter client, desiring to throw “mud” as it were, at a soon-to-be ex-spouse or at anyone advocating on that person’s behalf, (Obviously, I have divorce cases in mind.)
In any case, I am about to raise three sets of questions regarding civility, lawyering, and professional conduct. The third set involves history and is the most important:
(1) WHAT WOULD A RIGOROUS DEFINITION (OR FORMAL AND CORRECT DESCRIPTION) OF CIVILITY BE? CAN SUCH A THING EVEN BE
FORMULATED? GIVEN THE TERM AND THE CONCEPT IS IT EVEN WORTH TRYING?
(2) ASSUMING CIVILITY IS MOSTLY SIMILAR TO WHAT I HAVE SKETCHED ABOVE, DOES A LAWYER ALWAYS HAVE A DUTY TO BE CIVIL IN THE PRACTICE OF LAW? DOES ANY INCIVILITY FALL OUTSIDE THE “CIRCLE” OF PROFESSIONALISM? (Of course, a few outside-the-circle suggestions have been suggested. Was I right? In what contexts? Are there more? How might they be sketched, portrayed in more detail, and justified?)
(3) IT IS OFTEN SAID THAT THERE HAS BEEN A DECLINE OF CIVILITY IN THE LEGAL PROFESSION, SPECIFICALLY IN THE LAST GENERATION, AND THAT THIS DOWNWARD MOTION IS AND WILL BE A VERY BAD PROCESS LEADING TO RUINATION, AN INDICATION OF EVIDENCE THAT OUR WORLD IS, AS THEY SAY, “GOING TO HELL IN A HANDBASKET.” NOW FOR THE QUESTION: HAS LAWYER CIVILITY DECLINED FROM THE “OLD DAYS”?
Here are my first attempts to answer the questions”:
(1) Civility is not the sort of term or idea which can strictly be defined, and it would be a bad idea to even try. It also cannot be done with “professionalism” or “profession.” To try would be as murky and indeterminate as trying to do “good guy” and even “great guy.” There are lots of words and ideas like this. Sometimes some characteristics can be ruled out. Men who murder babies are not good guys. The concept of Classical Republicanism rules out that society is ruled by a monarch. But a concept ruling some things out, does not do much for the idea that there is a rigorous or complete definition. Betrayal of a client is never permitted, though that has nothing to do with civility. Incivility to a judge comes the closest to being completely forbidden and is nothing like murdering a child. Nevertheless, is it always forbidden by professionalism or the rules of civility? Surely not.
(2) A lawyer does not always have a duty to be civil. If L-1 is uncivil to L-2, at least a measure of responsive incivility is permitted. The idea is supported by professionalism, good sense, general ethics and legal ethics. Thus, under some circumstances, it is permitted by professionalism to be uncivil in return. The obligations of vigor on behalf of a client may require it, e.g., in response to threats. Then again, “shrugging things off” is healthy and often effective, and “nudging” without being pushy or threatening is also more effective, at least in the long run than pounding the table, or worse,
I have not myself seen much in the way of incivility that falls in the category of the rude or the like.
However, in litigation, so I have heard, lawyers sometimes say things like this:
I’m going to kick your ass.
I own this town and this judge.
My client has been sued many times, and we have never lost this kind of case.
You are not good enough to face up to me.
You may have gone to Yale, and I many have gone to Saint Hilda, that means nothing here.
You’re going to regret even taking a deposition in this case.
Listen asshole, you are incompetent now, and you always have been. You should hear what other lawyers and judges say about you, turd.
[And it goes downhill from there:]
- You C-S.
- You C—.
- And so forth.
Some of these statements are fair warnings. Some of them are rude. Others show a lack of taste. Some show forms of “low-class trash.”
All that I have considered above, are face-to-face denunciations. More complicated questions arise out of the statements A makes, not to B, but to C (or , C & D & _________) or makes on the internet.
The same idea would apply to L-1, with respect to his/her client(s), though the case is more complicated when the client is uncivil. Civility is also a problem for the clients of L-2, except as to vigorous criticism in the service of L-1’s clients interests. Rudeness is probably not permitted, but a manifestation of a lack of respect under impeachment is. Vigor in cross examination or other types of confrontations is not inconsistent with refraining from being rude. As already indicated incivility to a judge is never prudent, even if there is no rule against it, which there always is. (When incivility is characterized by the law and contempt for the legal system or justice itself, then it might be one of those situations–like baby killing–that is stricken completely, without exception. )
Revenge is a more complex matter than those in the previous paragraph, and it is larger directly controlled by extra legal professional considerations. The appearance of civility in the service of the betrayal of a client is never permitted. But civility to a client for having committed a “serious” violation of a “serious” is not inconsistent with the law of professional duty running to a client. Civility does not imply approval.
(3) I have no real evidence that civility is declining. I have never seen any objective study or data that supports such a proposition. Most lawyers by themselves cannot make this case. They may assert it, but once questioned politely, they admit that they are relying on what they have been told, usually by much older lawyers. Many of the lawyers who make such statements are engaging in wishful thinking, “remembering” past years of what they and their respective “buddies” used to say to each other, and their own current general exhaustion, their own depression sometimes found in the aged, etc. Very crucial is the fact that human memories of what happened years ago or what happened over time are not reliable. The same is true of many short term remembrances, but that is not the topic here.
In supporting what I am saying, I use my own experience, and I have seen little of a decline in civility in the last 20 years. I also use my habit of asking for examples and experiences when lawyer’s talk about this topic. And I have used other sources as well.
Most of the discussions I have heard about increasing incivility comes from lawyers in family cases–mostly divorces. It seems extreme when characterizing larger and high contention divorce cases, often involving client bitterness, but I could be wrong about that. Usually what has been said to me focuses on conflicts regarding the hiding of evidence, or the belief that there was unreasonable resistance to producing it. In addition, a lot of this talk comes from lawyers that generally have a hostile attitude. The kind of lawyers I’m talking about tend to see networks of hostility, hated and a will to dominate those around him/her, and to see himself/herself as one of objects of those vices.
So here are my theses: (1) There is no sufficient definition of “civility” for lawyers for inclusion in the idea of professionalism, which itself is a tangled semantic web. (2) It is pointless to try and hammer out rigorous definitions of the words”civil,” “uncivil,” “incivility,” and their opposites. (3) There is no (or, at the most, little) evidence that lawyer civility is declining. In fact, there may be evidence that it is increasing.
Originally posted on 03/28/2013 @ 7:41 pm