Don't Call This Office Again: Dealing with Uncivil Lawyers - ABA YLD 101 Practice Series

B y Salvador A. Cicero

"Be civil to each other in the practice of law." These are words that resound with me. All my professors in law school just seemed to always bring it up. When we were sworn in as attorneys-at-law, speaker after speaker referred to this as a duty, not to mention a good idea. I always asked myself: Why is this such a big deal? Do lawyers really behave so badly all the time that we need a constant reminder? I did not think so. In fact, still think most of us behave with a "civilized" demeanor toward each other in most instances. But then again, I have seen the uncivil side of our profession.

For the first eight years of my practice I worked primarily in policy development and grass roots advocacy. Although I had meet many tough advocates, I had never really had to deal with any in-your-face type situations. I then decided to give twist to my career, take the bar exam in Illinois and try my hand at litigation. My first lesson in uncivil behavior was just around the corner.

During my very first litigation case, we were retained to step in and assist a client who had up to this point represented himself in a divorce proceeding. Our client had managed to get himself in quite a bit of trouble and was being bombarded with motion after motion. We began the litigation - being in court almost three weeks in row- and the judge consistently ruled our way.

We engaged opposing counsel in settlement talks. After a four way conference with both our clients, things seemed quite amicable and the case seemed like it would come to a conclusion in a reasonably short amount of time. There really was not much to fight about. Of course, the worst was yet to come.

A couple of days after the meeting, I received a call from opposing counsel. She asked me if we would need more time to respond to the pending motion and I told her that we would certainly appreciate it. She suggested we do an agreed order and I said that would be fine. I then looked at the calendar and informed her that I would be out of town and that another one of my colleagues would cover the hearing. I then informed my colleague of the agreement and prepared for my basic skills course, required for all newly admitted lawyers to the bar.

Half way through the course, I was heading home when I received an angry call from our client. There had been some kind of mishap in court. I headed straight for the office and came into what was a small "powwow" in the managing partner's office. Apparently opposing counsel had denied in open court that an agreed order was ever proposed. A heated argument had ensued and opposing counsel was quite upset because the judge had given us more time to answer anyway. Subsequently, one of their named partners had called our office and yelled at two different attorneys.

The managing partner at out firm asked me to get a hold of the attorney and try to clear up the matter. I was very concerned. Had I made a mistake? Did I misunderstand? I tried calling opposing counsel, but no one answered.

The next day, I was walking on my way to lunch next to a couple of friends. I called opposing counsel's office from my cellular phone and asked to speak with the lawyer with whom I had been negotiating. The man who answered said she was not in a then asked me who I was. I informed him that I was opposing counsel and gave him the case name. He started yelling at the top of his lungs at me: "So you are the guy who screwed us!!! Don't ever call here again!!" and hung up the phone. I was baffled. The guy walking next to me looked at me with a "what was that" expression on his face.

I was very worried: How am I going to negotiate my client's case now? I guess this means the negotiation is over. At the same time I was very offended. This was not about the client's case, this was about the lawyers and their behavior. What happened to being civil?

I started researching the firm, but nothing came up that would give me any sense of who it was I was dealing with. I asked a few older practitioners if they knew any of these lawyers. Finally, someone told me: "I know that attorney. He is just pushing you around, probably because you are new."

I then turned to the rules to see how to proceed. In Illinois, the rules do not specifically state that one has to be "civil." There are however a series of standards that are important and that can have real consequences. For example, under rule 3.3 (11) of the Illinois rules of professional responsibility, lawyers are forbidden to "refuse to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client."

Also, under the ABA Model Rules (reflected in the Illinois rules), lawyers are forbidden to engage in "conduct that is prejudicial to the administration of justice" (see Model Rule 8.4(d)).

When lawyers act disruptively or who willfully obstruct a trial, they can face a wide range of sanctions.1 When a sanction is appropriate, contempt appears to be the most frequently used one.2

However, if the case rises to this level, lawyers who are held in contempt during trial can in fact face formal disciplinary proceedings later on for the same conduct.3

Armed with this information, I contemplated the implications of the situation for the case. I decided to go straight ahead with our litigation plan, since so far we had won all three motions. If need be, I was ready to bring the matter before the judge and have a meeting in chambers. It seemed absolutely unreasonable to me that I was not able to speak with opposing counsel. Even if all of our communication was in writing, via letter of fax, there would need to be some verbal contact. How can one negotiate with another person that refuses to talk to you? This attitude is contrary to the spirit of doing what is best for your client.

At the next hearing I showed up and the woman was already in the court room. I went straight toward her and very amicably asked her how she was doing. She said OK and looked at me quite surprised (I guess she expected me to be rude to her). I came right out with it and told her: "I have called you a number of times, but was never able to speak with you about what happened. I want to make certain that I was clear in what was agreed. I thought out agreement was this but please tell me if I was mistaken. We are going to run into each other in court and I want to make sure where we stand with each other."

She was very nervous. She told me that she was herself new to the practice and that her boss was just very over protective of her. She tiptoed around the issue and never directly addressed whether there had been a mistake or not. However, she said there were no issues and we could proceed.

I decided to take it at face value and from this point forth the case proceeded amicably, until its conclusion. We both pretended that nothing had happened.

However, to this day, I don't understand what that ranting was about. Maybe the lawyer was under too much pressure, but the again maybe it was just a tactic.

I have since been involved in many more cases and have yet to find another lawyer who would behave in a similarly outrageous fashion toward me. I fact, I tend to get along quite well with most opposing counsel, even in contentious cases. I am always straight up with them when I think something needs to be decided by the judge and am otherwise quite flexible if I think a matter can be agreed upon.

And I always say: "Feel free to call me anytime."


1 See generally ABA Standards for Criminal Justice 6- 3.5 (2d ed. 1980 Supp. 1986) (listing sanctions for deterring and correcting misconduct of attorneys at trial).

2 See, e.g., In re Evans, 533 A.2d 243, 244 (D.C. 1987) ("in this jurisdiction the traditional method of dealing with contumacious behavior in the courtroom or in the course of a judicial proceeding is to cite the offender for contempt of court.").

3 See e.g., In re Moore, 665 N.E.2d 40 (Ind. 1996); In re Coe, 903 S.W.2d 916 (Mo. 1995); In re Stanley, 507 A.2d 1168 (N.J. 1986); In re Kunstler, 606 N.Y.S.2d 607 (N.Y. App. Div. 1993). See also the ABA.
Standards for Criminal Justice 6-3.5, recommending that trial judges inform appropriate disciplinary bodies of lawyers' misconduct at trial.

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