"Blessed are the Peacemakers:" The Case for Civility in the Practice of Law, 0119 KSBJ, 88 J. Kan. Bar Assn 1, 40 (2019)

Author:by J. Nick Badgerow
Position:88 J. Kan. Bar Assn 1, 40 (2019)
 
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"Blessed are the Peacemakers:" [1] The Case for Civility in the Practice of Law

No. 88 J. Kan. Bar Assn 1, 40 (2019)

Kansas Bar Journal

January, 2019

by J. Nick Badgerow [2]

We expect all attorneys to advocate zealously on behalf of their clients. We also expect attorneys to conduct themselves in a courteous, civil, and professional manner.[3]

INTRODUCTION.

Just as many citizens complain of the decline in civility in the general population, many lawyers and outside observers decry the obvious erosion of civility in the practice of law. It is not the purpose of this article to detail or attribute all the causes for this erosion, though one only need consider the parallel devolution of personal communication in social media to surmise some relationship. However, just to explore the edges of the issue, consider the following: - There are many more lawyers per capita in the United States than in prior decades. Indeed, since 1950, the proportion of lawyers has outpaced the growth of the general population by more than double.[4] This increase in the number and percentage of lawyers has, in turn:

o increased the pressure for clients and cases, leading to stress and short tempers;[5]

o decreased the likelihood that one may in the future encounter a lawyer to whom one has been less than civil. The old “what goes around, comes around” rule is fading away.

- The increasing view of “the law as a business” has in turn worn down the view that “the law is a profession.” Ten-Justice Sandra Day O’Connor, speaking on the topic of Professionalism, said this more than twenty years ago:

It has been said that a nation and its laws are an expression of the highest ideals of its people. Unfortunately, the conduct of our nation’s lawyers has sometimes been an expression of the lowest. Clients increasingly view lawyers as mere vendors of services, and law firms perceive themselves as businesses in a competitive marketplace. As the number of lawyers in this country approaches one million [1.43 million in 2018],[6] the legal profession has narrowed its focus to the bottom line, to winning cases at all costs, and to making larger amounts of money. Almost every complaint about the decline of ethics and civility “sounds the dirge of the profession turning into a trade.” Practice at the turn of the century, we are told, “promises to be nasty, brutish and, for some, short.”[7]

- There are far more non-lawyers performing services and tasks today which were in prior years performed only by lawyers.[8] Indeed, one no less well-placed than Charles Dickens has observed the following regarding the relationship of lawyer and client:

The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.9

- The ubiquitous use of e-mail as the primary means of communication, and other social media, have made people less restrained in our communications.10

Civility in our profession is waning, especially in the litigation arena. Lawyers routinely sling insults at each other, and even at judges. Yelling occurs in depositions and courtrooms. Requests for extensions are improperly withheld to gain tactical advantage. Email, while a convenient communication tool, has led many of us to write things that could have been said with more tact.11

- Frankly, even in the face of egregious conduct by lawyers, judges appear to be reluctant to utilize the discretion given to them to sanction bad behavior by the lawyers appearing before them.12 This in turn may embolden lawyers to stretch the limit, to escalate friction and uncivil conduct.

Regardless of the cause, the decline in civility in the practice of law is a recognized phenomenon, and must be taken as a given.13

Taking the decline in civility among lawyers as a given then, it is the purpose of this article not to complain, but to discover that the phenomenon is not new, and to explore how civility, and not incivility, is (a) professional, (b) ethical, and ultimately (c) more successful. It is hoped that these inducements may help to encourage our fellow lawyers to adopt a more civil approach in dealing with other lawyers.

INCIVILITY IS NOT NEW.

Lawyers are advocates. We are trained to argue strongly for our clients. It has always been so. But this advocacy has also led lawyers to act uncivilly towards one another.14 This was observed as early as ancient Rome: If no one paid a fee for lawsuits, . . . there would be fewer of them. Now, however, hatred, strife, malice, and slander are fostered. Just as bodily sickness gives fees to doctors, so also a diseased legal system enriches lawyers.15

The very falls of the Greek and Roman Empires have been attributed to the decline of civility among its citizens. The principal cause of the [decline of ancient Greek and Roman civilizations] was a degeneracy of manners, which reduced those once brave and free people into the most abject slavery.16

A recently published book, "A Field of Blood," explores the debates among United States Congressmen (most of whom were lawyers) in the days leading up to the American Civil War. The author, Joanne B. Freeman, describes legislative sessions which included threats of death, flipped desks, canings, and unbarred fisticuffs. Congressmen were reported to have drawn pistols and waved Bowie knives at each other. One of the representatives even killed another in a duel. Many of them were bullied and beaten in an attempt to force them into conformity, particularly on the issue of slavery.17

Recognizing that lawyers endemically do not get along, and perhaps have never gotten along, does it serve the interests of lawyers (and their clients) to persist in such behavior?

LAWYERS MUST BE ZEALOUS.

An often-cited excuse for incivility is a lawyer’s duty to be zealous. Among the first of the Rules of Professional Responsibility applicable to lawyers is the requirement that a lawyer zealously represent his/her client. Rule 1.3 of these Rules mandates that: “A lawyer shall act with reasonable diligence and promptness in representing a client.”18 The official Comment to this Rule explains: A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.19

Thus, lawyers are required to represent their clients zealously, and many more are the lawyers who have been disciplined for a lack of suitable zeal,20 than for exercising excessive zeal.21

ZEAL VS. CIVILITY.

Zealous representation must always be tempered, however, with good manners and civility. The Kansas Supreme Court has cogently observed: It is within the real meaning and intent of our Code of Professional Responsibility that lawyers should always be cognizant of the necessity for good manners, courtesy and discourse, both to client and other practitioners, as being part of our professional ethics. The zeal employed by an attorney in guarding the interests of his clients [and in communicating with adverse parties] must always be tempered so as not to inject his personal feelings or display a demeanor that subjects parties to a proceeding or opposing counsel to certain indignities.22

It is the task of striking an appropriate balance between zeal and civility, then, which calls for the exercise of due professional judgment on the part of the lawyer. As one court put it: We close this discussion with a reminder to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with “attack dog” or “scorched earth”; nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.[23]

The Minnesota Supreme Court has similarly stated: Respondent asserts he has a right, indeed an obligation, to represent his clients vigorously, aggressively, and zealously. To be vigorous, however, does not mean to be disruptively argumentative; to be aggressive is not a license to ignore the rules of evidence and decorum; and to be zealous is not to be uncivil.24

Perhaps by gaining a better understanding that civility is both professional and ethical, one can come to the...

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