Tom Wallerstein

I’m always humbled when readers email me, and I try to respond to every message. But alas, not everyone is a fan. My column last week on artificial deadlines generated a long rant of an email from attorney Bob V., excerpted here:

“I was disappointed when, instead of using your column to preach about common courtesy and civility, you used it to rationalize and justify boorish attorney behavior. I thought you were actually going to condemn this kind of BS but instead you went on to rationalize it by fictionalizing a series of explanations for immature, boorish, behavior. Your rationalization about why the partner might justifiably have acted the way she did shows what is all wrong with the practice of law…”

Bob continued: “The situation you described is reflective of the lack of common courtesy exhibited by attorneys at all levels of seniority from top partners, to junior partners, to senior associates, to mid-level associates with power over junior associates. It is reminiscent of the kind of self-perpetuating college frat-rat behavior that won’t seem to go away in the practice of law. Here’s an idea. Why not write a column about the general lack of civility and common courtesy in law and then present ideas on how to create a new practice model that emphasizes a little humanity?”

Rather than respond privately, I thought I would respond publicly, and take the author up on his suggestion that I write a column about what he perceives to be a “general lack of civility and common courtesy in law.”

I would tell Bob that I am well aware of the abuses sometimes inflicted by partners on associates, and the lack of civility among some attorneys. By no means am I an apologist for that and I wasn’t trying to rationalize that behavior. I think Bob overlooked the following passage from my article:

“I don’t intend by my comments to rationalize abusive behavior. Artificial deadlines are a favorite tactic of corporate bullies who want to flex their power over subordinates. From Pablo’s description, it sounded to me as though his boss was trying to intimidate and harass him…. [T]he fact that she apparently never so much as glanced at his brief, after calling him at home, at night, to insist on it the next morning, suggests to me that she was most concerned about asserting her power over him.”

Bob also seems to have ignored my conclusion, in which I suggested that artificial deadlines can be kept in a way which is not abusive or demeaning, but instead based on honesty and respect.

Having said that, I am skeptical of Bob’s premise that civility in the practice of law has degenerated to such a degree that we now require new rules to regulate common courtesy.

First, I doubt that any new rules or standards are necessary because being civil generally provides its own reward. Conversely, behaving badly leads to worse results for both attorney and client. I have written before about attorney behavior that I believe crosses the line of ethics. Even then, I noted that “[a] lot of bad behavior should be avoided simply because it is counter-productive. For example, an attorney may refuse to offer voluntary extensions of time to respond to discovery, or to a complaint. Aside from violating a principle of professional courtesy, that behavior also is ultimately self-destructive. In litigation, what comes around goes around, and granting extensions of time that will not prejudice your client is a prudent way to ensure later modest courtesies for yourself when needed.”

Second, it is not my nature to preach about how others should behave. Life is already hard enough to get through without worrying about how everyone else should be behaving. I try to live and work in a way I believe is appropriate, and I try to teach my kids to do the same. Personally, I believe that being civil and courteous is indeed a moral mandate, and I try to conduct myself accordingly. But I am not inclined to insist that everyone else follow my moral code.

Third, I am skeptical that the practice of law has really become significantly less civil in a way that requires a paternalistic solution. This concern sounds too similar to a familiar refrain I hear in a variety of contexts; namely, the suggestion that things were better in the good old days.

Every generation seems to think the next generation has fewer morals and that society is going to hell in a bucket. I have a suspicion that for hundreds, if not thousands, of years, parents have been telling their children, “When I was your age . . . .” Every generation thinks that THEY had it all figured out, that kids today just have no respect, and that the world somehow becomes a little bit worse with each passing generation. I disagree. In my opinion, people in general have not become fundamentally “worse” over time. The world is now, and has always been, populated by kind and wonderful people, by mean and heinous people, and every shade of gray in between.

For example, every generation seems to think that the music that is popular with youth is not “real” music. Not long ago, the Beatles were the subject of scorn for their “long” unruly hair, and “rock and roll” was the root of all evil. Now, some of those same people who rebelled by joyously listening to the Beatles are shaking their heads, insisting that rap isn’t “real” music, and believing that tattoos are a dangerous, subversive fashion that threaten all that is good and decent.

We’re now mere days away from electing our next President. This year, like every election year, we have seen outrageous political ads. Both sides decry the others’ negative campaigning, and the talking heads insist that our political discourse has reached a new low.

But has it? I suspect that negative political campaigning is not new. I’ve read that Grover Cleveland suggested that Rutherford B. Hayes had shot his own mother in a drunken fit. Hayes responded by highlighting that Cleveland had sired an illegitimate child and placed the mother in a mental hospital. Thomas Jefferson apparently accused John Adams of being a hermaphrodite. In response, Adams accused Jefferson of being the son of a “half-breed Indian squaw and a mulatto father.”

I’m not a legal historian, nor have I been practicing for decades, so I don’t know how current legal practice compares to practice long ago. Perhaps lawyers really are less civil today than they used to be. Perhaps they show less professional courtesy. Even if true, I doubt the problem is as serious as some suggest.

One thing I do know is that the exaggerated concern over incivility sounds strikingly similar to other arguments that I frequently hear, and which are usually proffered by older, irascible men. Bob V., I respectfully decline your suggestion to decry the alleged decline of civility in law or in society in general, or to propose a new paradigm for how to address that “epidemic” that some people seem to think is destroying modern legal practice. Instead, the next time some young whippersnapper lawyer doesn’t show you the respect you feel you deserve, speak to him in the language of the times, in words he will understand, and simply tell him to “get off my lawn!”


Tom Wallerstein lives in San Francisco and is a partner with Colt Wallerstein LLP, a Silicon Valley litigation boutique. The firm’s practice focuses on high tech trade secret, employment, and general complex-commercial litigation. He can be reached at tomwallerstein@coltwallerstein.com.


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