Old People

Old Lady Lawyer: Be Nice… Really?

The sad state of civility in the legal profession.

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All oaths of admission to the various state bars have language to the effect that the newly-minted attorneys swear (or affirm) to defend the United States Constitution and the relevant state constitution. California now requires an additional sentence that, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

The last time I looked up the definition of “strive,” which was just minutes ago, it means to “attempt, make great efforts toward, struggle vigorously,” and so on. If I had said to either of my parents that I would “strive” to clean up my room, “strive” to finish my homework, or “strive” to do anything else that my parents wanted to me to do, they wouldn’t have had to “strive” to get me to comply. Whatever it was got done, as the fear of parental discipline in whatever form provided sufficient motivation.

If the California Bar had asked me, and it didn’t, I think “strive to” should have been deleted. You either will conduct yourself at all times as the oath sets forth, or you won’t. The explanation for this addition to the oath of admission is an effort to combat what everyone in the legal profession (again, that word profession, rather than business) sees as a decrease in civility among lawyers and the corresponding increase in nastiness. I could use a number of adjectives other than nastiness, but you get the point.

So, why has civility become something evil, something to be ridiculed rather than exemplified?

Way back in the dinosaur times of my early days as a baby lawyer, the term “incivility” was as unknown to lawyers as bound law books are to today’s crop of lawyers. Professional courtesies meant exactly that and among lawyers were routinely extended: you need an extra two weeks to respond to the discovery? Can we reschedule my client’s deposition because he has an ill family member? The court just notified me that the trial will start on that date we had scheduled for a hearing. Yes, of course, let’s agree on new dates. Let’s stipulate. Whatever happened to those courtesies that were a regular part of daily practice?

Don’t tell me that the fax machine, email, and texting have made that great a difference in how lawyers treat each other. That’s ridiculous.

I have a number of theories, none of which has been tested, except in conversations with other dinosaur lawyers, who look at the state of the profession today, shake their graying, grayed, or dyed-to-cover-the-gray heads. There’s no consensus, but several theories do come to their minds:

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  1. The profession is not what it used to be; the competition for clients, both obtaining and retaining them, has become so fierce that there’s no compunction about stepping over each other and on each other to get the “get,” as it’s called in the TV news world.
  2. There is no such thing as the “Golden Rule” anymore. Remember how in kindergarten we were all taught to “do unto others as you would have them do unto you?” At what point did we lose that message? Law school or before? Right after the oath of admission? Right after the first time you felt dissed by opposing counsel?
  3. I think that clients drive incivility. They are the ones who say “a million for defense, but not a penny for tribute.” Their oftentimes ridiculous and wholly unrealistic expectations of what might result force attorneys to take unsupported positions and treat both the opposing party or parties AND their counsel as pond scum. Really? Why is that necessary? What does that achieve?

All lawyers learn, sooner or later, that you don’t believe everything the client tells you. Clients shade the truth to their best advantage; it’s a natural tendency to want to do that, but don’t fall into that trap. Rarely is anything all black or white, the good guy v. the bad guy. A client’s truth is not necessarily the truth.

Yes, the client wants, needs and deserves to have a vigorous, zealous advocate for its position, but why does that have to degenerate into such uncivil conduct as: nastygrams sent by letter, email, or fax, refusing to return telephone calls or legitimate requests for rescheduling? These are just the first three that come to mind. Just because the opposing clients want to shoot it out at the O.K. Corral doesn’t mean that the opposing counsel have to take the same approach. However, today, clients think that if attorneys are civil and courteous to each other, they’re in collusion to the detriment of the clients.

One of the most important jobs that a lawyer has (and it’s never too soon for any newbie lawyer to learn this) is to manage a client’s expectations, and that should begin as early as the initial conversation with the prospective (note the use of that adjective here) client. Please don’t fill the client’s head with “you have a great case, it’s perfect, we’ll take them to the cleaners” language. What inevitably happens later on is the realization that every case has holes in it. The client then looks at a diminished recovery, if at all, and the lawyer then looks at a possible malpractice claim.

Conversely, the defense lawyer fails to manage expectations by assuring the client that she’ll win a dispositive pre-trial motion that will cost many thousands of dollars to make, but worth it, since it’s a “dead bang winner.” What happens? The motion is denied, and the client orbits Pluto over the size of that bill.

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Perhaps it’s the failure to manage those expectations that creates the stress that prompts so much uncivil behavior, but the question remains: why such discourtesy? What does that get you, except the momentary satisfaction of hanging up on the lawyer, sending a snarky email (that could wind up as an exhibit in a declaration of opposing counsel), or refusing to extend any courtesy to opposing counsel? Has the legal profession degenerated into some dystopian, Darwinian world where to be courteous and civil to each other is something shameful? If it has, then shame on us.

Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at[email protected].

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