Rudeness

Who Needs Civility Anyway? A Postmortem Post

Remember, as lawyers, your most valuable asset is your reputation. Do you want to be known in your community as an unethical, unnecessarily aggressive jerk who is always difficult to work with?

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Before I get into this week’s post, I want to share with you that I’m going on a five-week Resilient Lawyer road trip starting May 30th. I’d love to connect with you. You can get all the details here.

Last week, I wrote a post entitled Happy Law Day! Can We Bring Civility Into Law? In response to my post, a fellow member of the California Bar made what I perceived to be an insensitive, disrespectful, and hurtful comment. You can read my response. Me Love You Long Time, Sir, and his apology here.

What is ironic is that his response highlights the desperate need for civility in our profession, which was the premise of my previous post.

“As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”

— California Attorney Guidelines of Civility and Professionalism

Around the country, State Bar Associations are implementing civility guidelines in an effort to rein in the incivility in our profession. The Illinois Supreme Court, for example, has a commission on professionalism known as 2Civility.org. I’ve had the opportunity to meet Jayne Reardon, the Executive Director of 2Civility, and she was gracious enough to organize a dinner during my trip to Chicago, IL.

In Reardon’s article, she explains the root of the word civility:

The concept of “civility” is broad. The French and Latin roots of the word “civility” mean roughly “relating to citizens.” In its earliest use, the term referred to being a good citizen, i.e., exhibiting the good behavior for the good of a community.

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Most lawyers will excuse their behavior, which includes name calling, over-the-top aggression, and other degrading behaviors under the guise of “zealous advocacy.” We can table whether such behaviors are acceptable or not in an adversary setting for another day.

However, why is such behavior acceptable when we aren’t opponents? How does spewing hateful, nasty, disrespectful comments against others promote the good of a community?

If you have spent any amount of time either in the comment section at ATL or among certain lawyer circles on Twitter, you know this space is full of lawyers who seem to delight in using other lawyers as target practice. What is the function of such behavior? And do our oaths as attorneys require us to strive to be better than calling each other names or engaging in these jerk-life behaviors?

The attorneys I admire always hold themselves to a set of guiding principles, including a commitment to hold themselves to higher set of standards in practicing law and conducting themselves with a certain decorum. For example, Karen Johnson-McKewan, a partner at Orrick, talked about expecting the very best from others, and conducting herself with dignity, courtesy, and respect.

Civility isn’t something you can legislate. And my guess is that judges don’t want to be the civility police. In this Nevada Lawyer, December 2009 article, Senior Judge Gerald Hardcastle states his reason for limiting pre-trial arguments:

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I found that if attorneys argue motions, the first two minutes are spent arguing the merits of the motion, the next three minutes are spent arguing the opposing party’s lack of human worthiness, and the last three minutes are spent arguing about the opposing attorneys’ lack of value.

Judge Hardcastle states that in any court appearance, there are three issues lawyers should focus on.

  1. Be clear about what you’re requesting.
  2. Is what you’re asking within the judge’s purview to grant?
  3. Is what is being asked the best result?

He goes on to quote Justice Antonin Scalia and Bryan Garner:

In court proceedings, attorneys should show themselves worthy of trust and affection. Trust is won by honestly presenting the case. Affection is displayed by a positive attitude toward the court, a collegial attitude toward opposing counsel, in a refusal to take cheap shots and in asserting a forthright manner. These positive attitudes are inconsistent with unprofessional and uncivil behaviors (emphasis added).

Being a lawyer is an incredible privilege. We have the power to help our clients, make a profound difference in their lives, and to be their advocates. I get to help free clients from the chains of overwhelming debt. It’s truly an incredible feeling when the client hugs me with joy after I get them through their bankruptcy.

Part of being excellent at what I do is to maintain professionalism and civility. This is the floor of what is expected from lawyers. As California attorneys, we take an oath to “strive to conduct [ourselves] at all times with dignity, courtesy and integrity.” That oath — it’s a public declaration, a promise I make to myself, to my clients, to my opposing counsel, to his client, to witnesses, and of course, the trier of fact. It’s also a commitment to how I’ll conduct myself with fellow attorneys.

I believe in order to fix our legal profession — the public’s perception of our profession, the deeply broken mental, emotional, and physical well being of lawyers, as well as our legal system as a whole — each attorney must dedicate himself or herself to civility.

But what about the clients? I think Judge Hardcastle said it best:

There is a common perception that clients want attorneys who are aggressive and “willing to fight for the client.” From the initial interview the client should be told that being civil and respectful is part of being a successful lawyer: a lawyer that is successful for the client. An attorney’s integrity and credibility, established over time, should not be lost for the sake of an unreasonable client (emphasis added).

In other words, in the long run, civility is good for you and your client. Remember, as lawyers, your most valuable asset is your reputation. Do you want to be known in your community as an unethical, unnecessarily aggressive jerk who is always difficult to work with? Or do you want your fellow attorneys and judges to say “she’s someone who conducts herself with dignity, courtesy, and integrity.” And, is a damned good attorney.

Those rules you learned in kindergarten? They still apply as adult. The Golden Rule holds true — even in law practice. As Sheldon Sloan, president-elect of the State Bar of California says:

This should not be difficult. Most of us just need to hearken back to what our moms and dads and schoolteachers tried to instill in us we were kids and apply it to our chosen profession: A good lawyer doesn’t need to schedule depositions when an opponent is out of town on vacation.

A good lawyer doesn’t need to serve documents in a way that unfairly limits the other party’s opportunity to respond.

Big firm lawyers don’t need to try to crush opposing sole practitioners by papering them to death.

And no lawyer should ever make false, misleading or exaggerated statements while grandstanding for the cameras or any other means of reaching the public.

As I said, all just plain common sense.

One can be an excellent attorney and advocate with all the required zealousness to achieve the best results for that client. It does not, however, come at the expense of professionalism. That’s just “plain common sense.”

Jeena Cho is co-founder of JC Law Group PC, a bankruptcy law firm in San Francisco, CA. She is also the author of the upcoming American Bar Association book, The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law Practice Using Meditation (affiliate link), as well as How to Manage Your Law Office with LexisNexis. She offers training programs on using mindfulness and meditation to reduce stress while increasing focus and productivity. She’s the co-host of the Resilient Lawyer podcast. You can reach her at [email protected] or on Twitter at @jeena_cho.

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