Tension Between Zealous Advocacy and Civility
Even for the most ethically conscientious lawyers, there is seemingly ubiquitous tension between the duty of zealous advocacy and the duty to conduct oneself civilly at all times. Model Rule 1.2 compels zealous advocacy, and Comment 1 to the Rule speaks to the depth of that duty, noting that a lawyer
should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to a lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. (Rule 1.2 Cmt. 1)
The distorted image in popular culture of lawyer as a partisan and combative zealot would seem to preclude civil behavior as the preferred approach to legal practice. Not so. That same comment goes on to explain:
A lawyer is not bound, however, to press for every advantage that might be realized for a client. . . . The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. (Rule 1.3 Cmt. 1)
Thus, there are firm limits to the lawyer’s duty to act with zeal in advocacy, but the precise location of those limits is not always easy to discern. Therein lies the tension. Appropriate zeal, however, never extends to offensive tactics or treating people with discourtesy or disrespect.
The individual lawyer is the guardian of the tone of interactions that will serve both the client and the legal system well. Clients may not understand these limits. Many clients are under the misconception that because they hired the lawyer, they have the power to dictate that lawyer’s conduct. It falls to the lawyer to manage and correct that expectation and to let the client know the lawyer is more than a “hired gun.” In practice, that often means refusing a client’s demand to act uncivilly or to engage in sharp or unethical practices with other parties in a case or matter.
The rules themselves make it clear, of course, that the lawyer is not just a hired gun. Model Rule 1.16(b)(4) of the ABA Model Rules of Professional Conduct provides that a lawyer may withdraw if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has fundamental disagreement, and Rule 3.1 provides that a lawyer cannot abuse legal procedure by frivolously bringing or defending a proceeding, or asserting or defending an issue. Egregious forms of uncivil behavior in a court proceeding also may constitute conduct prejudicial to the administration of justice, within the meaning of Rule 8.4(d).
The Problem of Declining Civility in the Legal Profession
Although civility is central to the ethical and public-service bedrock of the American legal profession, substantial evidence points to a steady rise in incivility within the American bar. It is problematic to pin down the incidence of incivility and unprofessional conduct because incivility, without some associated violation of the ethical rules, historically has not been prosecuted by the regulatory authorities. Thus there is no good systemic data on incivility’s prevalence. There have been countless writings, however, about widespread and growing dissatisfaction among judges and established lawyers who bemoan what they see as the gradual degradation of the practice of law, from a vocation graced by congenial professional relationships to one stigmatized by abrasive dog-eat-dog confrontations.
Discussion of the problem tends to dwell on two areas: (1) examples of lawyers behaving horribly, from which most of us easily distinguish ourselves; and (2) possible causes and justifications of that behavior – rather than possible solutions. Traditional media and social media carry countless accounts of lawyers screaming, using expletives, or otherwise being uncivil. Lawyers who reflect on the trend generally pin the cause on any of a combination of factors, including the influence of outrageous media portrayals; inexperienced lawyers who increasingly start their own law practices without adequate mentoring; and the impact of modern technology that isolates lawyers and others behind their computers, providing anonymous platforms for digital expression.
The scattered data that is available tends to confirm that uncivil lawyer conduct is pervasive. A 2007 survey done by the Illinois Supreme Court Commission on Professionalism, for example, took a close look at specific behaviors of attorneys across the state and concluded that the vast majority of practicing lawyers experience unprofessional behavior by fellow members of the bar. Over the prior year, 71 percent had reported experiencing rudeness – described as sarcasm, condescending comments, swearing, or inappropriate interruption. An even higher percentage of respondents reported being the victim of a complex of more specific behaviors loosely described as “strategic incivility,” reflecting a perception that opposing counsel strategically employed uncivil behaviors in an attempt to gain the upper hand, typically in litigation. The complained-of conduct included, for example, deliberate misrepresentation of facts, not agreeing to reasonable requests for accommodation, indiscriminate or frivolous use of pleadings, and inflammatory writing in briefs or motions.
Whatever the causes, the first step toward a real remedy to the incivility pandemic is recognition of the deeply destructive impact of uncivil conduct on individual lawyers who engage in it, on those subjected to it, on the bar as a whole, and ultimately on the American system of justice. It begins with recognition that civility is, and must be, the cornerstone of legal practice.
Benefits of Civility
Aside from the most obvious reasons that lawyers should act civilly – that is, that the profession requires it of them and it’s just the right thing to do – a number of tangible benefits accrue from civil conduct in terms of reputational gain and career damage avoidance, as well as strategic advantage in a lawyer’s engagement.
Lawyers who behave with civility also report higher personal and professional rewards. Conversely, lawyer job dissatisfaction is often correlated with unprofessional behavior by opposing counsel. In the 2007 Survey on Professionalism of the Illinois Supreme Court Commission, 95 percent of the respondents reported that the consequences of incivility made the practice of law less satisfying.
Other research shows that lawyers are more than twice as likely as the general population to suffer from mental illness and substance abuse. Law can be a high-pressure occupation, and it appears that needless stress is added by uncivil behavior directed to counsel. “Needless” is used as a descriptor here because the consequences of incivility, as acknowledged by over 92 percent of the survey respondents, often add nothing to the pursuit of justice or to service of client interests. Consequences include making it more difficult to resolve our clients’ matters, increasing the cost to our clients, and undermining public confidence in the justice system. They are the exact opposite of the goals we should strive to accomplish as lawyers.
Moreover, judges are not fond of being asked to decide disputes between opposing counsel extraneous to deciding the merits of the respective clients’ case. Judges will tell you that mediating bickering between counsel is the least tasteful part of their job. Even if a judge avoids wading into a dispute between counsel, the fact that a lawyer was disrespectful or used bad behavior cannot help but register on the judge’s consciousness. Then, if there is a close call on a motion or other issue, and the judge has a choice between ruling in favor of the client whose lawyer was civil and professional or in favor of the client whose lawyer has been a troublemaker, the Judges-Are-Human rule may well control. Similarly, juries also report being negatively affected by rude behavior exhibited by trial attorneys. In sum, lawyer conduct can and does affect the results lawyers deliver to their clients, and ultimately the success of their practices.
It naturally follows that a lawyer’s reputation for professional conduct is part and parcel of his or her reputation for excellence in practice. Before the advent of the Internet, evaluations of attorneys were conducted and disseminated largely by and for lawyers and published yearly in books with entries listing an attorney’s achievements by name, geographic region, and specialty. Now, any person who has contact with an attorney may rate and comment on the attorney’s performance and professionalism on websites devoted to rating and ranking attorneys or through general social media channels. In the realm of the Internet, one uncivil outburst may haunt an attorney for years; and reputations may be built and destroyed quickly. Even a cursory search of some of these websites shows that clients regularly comment (especially if they are displeased) about an attorney’s communication style and respect for his or her clients and the system of justice.
Not surprisingly, research shows that clients evaluate a lawyer who exhibits civility and professionalism as a more effective lawyer. If clients evaluate their lawyers as being effective, they stay with them; if they see their lawyers as ineffective, they will go elsewhere for legal services, particularly in a climate in which the supply of lawyers exceeds the demand for legal services. Research also shows that superior service, in which relationship abilities are central, increases client retention rates by about one third. Effective client service and positive relationships, in turn, increase profit to the lawyers by about the same rate.
Bad Behavior/Bad Consequences
Historically, incivility per se has by and large not been prosecuted by attorney regulatory authorities. Since 2010, however, several attorneys have been suspended by their states’ high courts for uncivil conduct implicating a lawyer’s duty to uphold the administration of justice and other ethics rules.
The Supreme Court of South Carolina has disciplined several attorneys for incivility, citing not only ethics rules but that state’s Lawyer’s Oath, taken upon admission to the bar. The oath contains a pledge of civility. In Illinois, an attorney was prosecuted by disciplinary authorities for oral and written statements made to judges and an attorney that violated various ethical rules, including Illinois Rule 8.4(a) (modeled after the corresponding ABA Model Rule).
Outside of the courtroom, much of the uncivil arrow-slinging between counsel historically has occurred during discovery disputes in litigation. However, the growing influence of technology in litigation, with its potential for marshaling exponentially more information and data at trial than ever, and the commensurate need to control and limit that information to what is relevant and manageable, suggests courts will grow even less tolerant of lawyers trying to manipulate the pre-trial fact discovery process or engaging in endless, contentious discovery disputes. Moreover, while never wise or virtuous, it is no longer profitable to play “hide the ball” in litigation as clients are demanding better results at reduced costs.
Movement Toward Systemic Solutions to Incivility
There have been programmatic efforts, largely led by judges, to address and curb spreading incivility in the legal profession. In 1996, the Conference of Chief Justices adopted a resolution calling for the courts of the highest jurisdiction in each state to take a leadership role in evaluating the contemporary needs of the legal community with respect to lawyer professionalism. In response, the supreme courts of 14 states have established commissions on professionalism to promote principles of professionalism and civility throughout their states.
Many more states have, either through their supreme courts or bar associations, formed committees that have studied professionalism issues and formulated principles articulating the aspirational or ideal behavior the lawyers should strive to exhibit. These professionalism codes nearly all state at the outset that they do not form the basis of discipline but are provided as guidance – attorneys and judges should strive to embody professionalism above the floor of acceptable conduct that is memorialized in the attorney rules of ethics. They also typically echo a theme found in the Preamble to the Model Rules of Professional Conduct: that lawyers have an obligation to improve the administration of justice.
In 2004, a relatively aggressive stance was taken by the Supreme Court of South Carolina. The South Carolina high court amended the oath attorneys take upon admission to the bar to include a pledge of civility and courtesy to judges and court personnel and the language “to opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” It also amended the disciplinary rules to provide that a violation of the civility oath could be grounds for discipline. Similar civility pledges were added to the lawyers’ oath of admission by the Supreme Court of Florida in 2011 and by the Supreme Court of California in 2014.
Some jurisdictions, in states including New Jersey, Georgia, Illinois, Florida, Arizona, and North Carolina, have taken the voluntary aspirational codes further and have adopted an intermediary or peer review system to mediate complaints against lawyers or judges who do not abide by the aspirational code. It is challenging to implement an enforcement mechanism in a way that inspires voluntary compliance with an aspirational code and the success of these mechanisms has been inconsistent.
Without question, the most effective ways of addressing incivility entail bringing lawyers together for training and mentoring. Mentoring programs are being offered by an increasing number of state commissions and bar associations. The American Inns of Court, modeled after the apprenticeship training programs of barristers in England, brings seasoned and newer attorneys together into small groups to study, present, and discuss some of the pressing issues facing the profession.
Conclusion: A Time to Recommit to Civility
The needed rebirth of civility, at a critical juncture in the evolution of the legal profession, should be seen by lawyers not as pain, but as gain. Technology and globalization are facilitating greater client influence and requiring increased transparency; civil behavior is more important than ever. As the research conclusively bears out, (1) civil lawyers are more effective and achieve better outcomes; (2) civil lawyers build better reputations; (3) civility breeds job satisfaction; and (4) incivility may invite attorney discipline. Not only does our profession require us to be civil, and it is simply the right thing to do, but professionalism among lawyers is required by the larger American society in order to preserve a great profession and survive as a civil society bound to the Rule of Law.