SC Lawyer, March 2004, #4. Ethics Watch March 2004 Uncivil equals unethical.

• Author: By John Freeman

South Carolina Lawyer

2004.

SC Lawyer, March 2004, #4.

Ethics Watch March 2004 Uncivil equals unethical

South Carolina LawyerMarch 2004Ethics Watch March 2004 Uncivil equals unethicalBy John FreemanLawyers exist because other people have problems. Good lawyers are good problem solvers. Some lawyers, unfortunately, have an uncanny knack for creating as many or more problems as they solve. These lawyers breed a lack of civility. See Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949, 953 (1995) (observing lawyer civility is "an essential element of the fair administration of justice" and that attorneys should act as "problemsolvers" and "peacemakers," not "promoters . . . of conflict"); Patrick J. Schlitz, On Being A Happy, Healthy, and Ethical Member of An Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871 (1999) (finding a perception among lawyers that our profession is one "in which aggression, selfishness, hostility, suspiciousness and cynicism are widespread"). How does a lack of civility manifest itself? In general, we find it manifested as rudeness, personal attacks, threats, false accusations, boorish, "cutthroat" tactics, discovery abuses, misrepresentations, aggressive behavior and the like. What follows are examples of uncivil behavior and some suggestions about what can be done about them. Inspiration for some items on the listing came from Randy Grau, An Associate's Seven Simple Steps to Civility, The Bencher, July/August 2003, at 18.

The liar

If you speak with experienced lawyers and ask them about a major sea change in lawyer behavior over the last 20 years, you will often hear that a shocking development is the major increase in the willingness of some lawyers to lie. This uncivil character is not SNL's John Lovitz playing Tommy Flanagan and topping off every whopper with the tag-line, "Yeah, yeah, that's the ticket." These uncivil lawyers lie to their fellow lawyers, to the court and, presumably, their clients and think nothing of it. Consider the list of lawyers in this state caught lying about something as mundane as attending CLE classes. When cornered, i.e., caught dead to rights, lying lawyers are prone to blame others for the bad information they dish with impunity. What to do with this miscreants? They need to be turned in to the disciplinary enforcers, but only if you've got strong, i.e., documentary proof, of their misconduct.

The bad body language opponent

This lawyer likes to ridicule, but not verbally. Eye-rolling, smirking, snickering, snorting, Al Gore-like sighing, head-shaking responses to arguments being advanced by opposing counsel. Demeaning gestures are a specialty. What to do with such misbehavior? First, don't do it yourself. Watch your body language. If someone abuses you, make a record. If sarcasm or yelling is involved, get a copy of the tape recording of the proceeding.

The it's-never-over advocate

For some lawyers, the record is never closed. Starting with a letter to the judge after the hearing has ended, many lawyers are constantly submitting new arguments, new pieces of evidence and rearguing all of what's gone before. The new submissions put opposing counsel in the position of either ignoring the submissions and possibly being viewed as acceding, or answering and objecting, with the latter two courses of action leading to increased client fees and likely provoking the "it's-never-over-advocate" to fire off another volley. What to do? First, once the matter has been briefed and argued, judges need to close records and reject untimely submissions as out of order absent good cause shown for untimely submissions. Some judges will sua sponte advise the advocate that further argument is not requested. A letter to opposing counsel, copy to the court, along the following lines may elicit the court's aid and help resolve the problem.

Dear It's Never Over,

The court has not requested any further submissions or briefing on this issue, and accordingly I am assuming the court will not consider your unsolicited letter (memo, etc.) dated _________ . However, we reserve the right to respond and ask Judge _______ to advise if further briefing, etc., is requested by the court. If the court is going to consider this additional information, we would like to supplement the record with a response and would ask the court to so advise.

Sincerely,

Advocate of Proper Decorum

The mis-quoter

This uncivil lawyer is the liar's first cousin. It seems that every conversation with this lawyer leads to a later misrepresentation about the substance of what you said, promised or what was agreed upon. Sometimes these references follow a meeting or phone conference in an unsolicited letter, recounting you having made admissions or concessions or agreements that were never part of the earlier oral conversation. This type of lawyer loves to take things out of context and to put a favorable (to the lawyer's client) spin on everything. Every misstatement invites either a corrective letter from you or silence, which will then be spun into an argument that, by not responding, you were acceding to accuracy of the mis-quoter's skewed report.

One way of dealing with this problem-creator is to write a letter as sketched out below. A fallback position is to tell the lawyer you can deal with him or her in writing only. Explain that you don't have time constantly to be setting the record straight and that you are unable to deal with the mis-quoter without a verbatim record of who said what.

Dear mis-quoter,

I am in receipt of your letter of ___ which misstates our conversation. Sadly, if this becomes a habit, we will be forced to only communicate with you in writing which will be a disservice to both of our clients.

Sincerely,

Advocate of Truth in Letter Writing

The bully

This lawyer is a bully and proud of it. Demeaning witnesses at depositions is a specialty, particularly when they are there by subpoena, i.e., under legal compulsion. Among the dirty tricks of this uncivil lawyer's trade are cutting off answers and gratuitous slurs. Consider papering this lawyer with Matter of Golden, 329 S.C. 335, 341, 496 S.E.2d 619, 622 (1998) and In re Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001).

If the misconduct occurs at a deposition, try to warn (on the record), and keep your cool. Do not retaliate. If you foresee a problem with opposing counsel's behavior, have with you and be prepared to hand out copies of Golden and In re Anonymous Member. If the misconduct continues, be prepared to terminate the deposition and seek a protective order.

The obstreperous objector

This lawyer is the bully's first cousin. This lawyer's stock in trade are obnoxious, repeated speaking objections and assorted gratuitous advice to the witness, the interrogator, etc. This lawyer has never read In re Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001), concerning behavior at depositions, nor has the big-mouthed one taken to heart SCRCP 30(j) or Local Federal Rule 30.04.

Take the pertinent court rule and be prepared to pass it out. Take and be prepared to hand out copies of Golden and In re Anonymous at the deposition. Consider taking a copy of this column. If the misconduct persists, get the transcript and the tape. For there to be conferencing with the deponent, whether during the deposition or during breaks or recesses, the lawyer involved must make a record of both the purpose and outcome of the conference under both the South Carolina court rule and the local rule. As above, be prepared to terminate the deposition and seek a protective order.

The "ethical" extortionist

This wrongdoer has studied the rules of professional conduct and has concluded that they apply only to the other side. Opposing lawyers are constantly accused by the extortionist of engaging in unethical behavior or committing malpractice. These accusations are sometimes accompanied by extortionate offers to settle.

Don't give an inch. Encourage the other side to file a grievance if they think it's warranted. Consider that the threatening could be considered extortionate which should be considered a violation of Rule 8.4 (e), engaging in "conduct that is prejudicial to the administration of justice." Note further that the Chief Justice's Commission on the Ethics 2000 implementation has recommended an addition to Rule 4.5 which would explicitly address threatening to file professional discipline charges.

Why uncivil conduct is unethical

Of course, various forms of uncivil behavior can be sanctioned as violations of discreet acts of misconduct violative of specific disciplinary rules. Few lawyers, but the most attentive, realize that the civility rules recently were changed significantly, and for the better. On October 22, 2003, the Supreme Court rewrote the Lawyer's Oath of Office, "effective immediately." Tucked into the new Oath is this undertaking: "To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications."

Before you dismiss this new language in your Oath as high-sounding but basically meaningless, consider this: under South Carolina's Rules of Disciplinary Enforcement (Rule 413, SCACR), lawyers are subject to punishment for various types of wrongs. One of the listed offenses, found in Rule 7(a)(6), is conduct that violates the lawyer's Oath of Office.

Kudos to the South Carolina Supreme Court for turning uncivil behavior automatically into unethical behavior subject to disciplinary punishment.

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