The topic is civility - you got a problem with that?

• Author: Frost, John W., II

"The only solution for the legal system is to try to see to it that bad tactics don't work."

--Vicent Cox, letter to the editor, ABA Journal

I first met Bob Josefsberg about 25 years go when we both served on the Board of Governors of the Young Lawyers Section. His warm humor, ready wit, and deep intelligence were immediately recognizable in board interplay. It took a little longer than the first meeting, but not much, to realize Bob is the kind of lawyer who makes a difference in his Profession. It came as no surprise this fall when I learned he has become the Dean of the International Academy of Trial Lawyers. That is a well-deserved distinction. In the annual dean's address, Bob listed some clear, specific, and practical strategies for promoting civility in our profession, and although his wit makes his talk appealing, he pulls no punches. `When you read the text of his speech, which is reprinted in the remainder of this column, you'll know why it provided, for me, one of those experiences wherein you read an article or hear a talk and say to yourself, "This is what everybody has been trying to say--but no one has said it nearly as well." Here is the text of his address:

Civility by Robert C. Josefsberg

My topic is civility--you got a problem with that, Buddy? Unfortunately, the lack of civility in our society and in our profession is not a laughing matter.

We are suffused with embarrassment in this country about the decline of morality and look for reasons in our government, our churches, our economists, our media. But among the most potent reasons must be the failure of many leaders of the legal profession to accept their role as law enforcers--to act as the keepers of their clients' conscience.(1)

In a system fixated on winning, civility has become a meaningless issue, discarded, not even debated by whoever is left standing. I am not going to discuss ethics today, nor will I discuss professionalism. Ethical decisions are often made alone--made between you and your conscience. No one ever knows about them. Civility is different--it's how you treat others. A civil and courteous lawyer may, unbeknownst to you, be unethical. And the converse is also true; an ethical lawyer may be very rude, contentious, and lacking in civility.

Professionalism is a larger category. It includes civility, ethics, being well prepared, and doing pro bono work.

Why do we confuse professionalism, ethics, and civility? First because they often overlap. Second, because even though these three qualities are distinct, there is a tendency for the lawyer to rate similarly in all categories. There is a tendency for linking. I will get back to the issue of linking of traits later. Suffice it to say that most of the time ethical lawyers are civil and professional. Unfortunately, some lawyers are not ethical, not civil, nor professional. Ethics and professionalism are very important, but in this short time that I have to speak, I'm not going to attempt to cover ethics or professionalism.

What is civility? Or, rather what was civility? As Trial Magazine in 1991 states, "Whatever happened to civility? If you're under 50 you're probably running for the dictionary."(2)

Civility is courtesy, dignity, decency, and kindness. It has been defined in the Virginia Bar Association's Creed as follows:

Courtesy is neither a relic of the past nor a sign of less than fully committed advocacy. Courtesy is simply the mechanism by which lawyers can deal with daily conflict without damaging their relationships with their fellow lawyers and their own well-being.(3)

Civility is not inconsistent with zealous advocacy. You can be civil while you're aggressive, upset, angry and intimidating; you're just not allowed to be rude. Unfortunately, some lawyers and the public don't understand the differences.

A Colorado lawyer recently explained why he stopped practicing law: "I was tired of the deceit. I was tired of the chicanery. But most of all, I was tired of the misery my job caused other people. Many attorneys believe that `zealously representing their clients' means pushing all rules of ethics and decency to the limit."(4)

The civility problem is not new. It has a long history:

An attorney was disbarred in 1883 for conduct unbecoming an attorney when he joined a mob to remove a prisoner from jail and hang him from an oak tree in front of the courthouse. In 1884, a lawyer was held in contempt of court for threatening the examiner during a deposition with an open knife and using insulting and indecent language. A year later--1885--a federal court remarked that lawyers entering the "temple of justice" armed with pistols should be found guilty of contempt of court and disbarred. More recent examples of lawyers and incivility include threatening or using physical violence on opposing counsel, personal attacks on opposing counsel instead of legal arguments disparaging jurors, exchanging invectives and displaying contentious, abusive, obstructive, scurrilous, and insulting conduct.(5)

I'm sure you have all heard and read a great deal...