In kindergarten, I was taught that manners always matter. Lawyers, both seasoned and new to the practice, need to be reminded of the same.
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. See https://www.nytimes.com/2007/02/20/health/psychology/20essa.html (attributing lack of “cyber restraint” to the “online disinhibition effect”).
What is causing the decline in decorum? Is it a lack of education on the subject of civility in law school? Is it a misunderstanding of the concept of zealous advocacy? Is it the increase in the number of lawyers? Is it because the litigation stakes are becoming higher? Are clients requesting aggressive and uncivil behavior? Is it technology? Many lawyers believe it is because we are spending less time interacting face-to-face with opposing counsel, and even with judges. Without question, most communications with opposing counsel are now via email and, in some cases, even via text.
The line between zealous advocacy and behavior that is inappropriate and beneath the practice can be a fine one. This is not a new concern. Certainly many courts and bar associations have implemented aspirational civility guidelines. State bars and the American Bar Association have also sought to address the decline in civility. For example, in California, effective May 27, 2014, new lawyers now take an additional oath upon admission promising to “strive to conduct myself at all times with dignity, courtesy and integrity.” See California Rule of Court, Rule 9.4. In other words, once given the privilege to serve as lawyers, we are expected to adhere to the professional standards that are essential to the preservation of order and justice.
What does appear to have changed is the willingness of courts and state disciplinary bodies to punish and deter uncivil behavior. Revocation of pro hac vice status, monetary and contempt sanctions, reductions in fee awards, and ultimately disbarment proceedings are all possibilities and the subject of recent press reports. Further, courts are looking at this problem through a creative lens. In March 2018, an Illinois lawyer was not only fined $50,000 but also ordered to undergo anger-management training and participate in an ethics course based on findings of repeated unprofessional, contemptuous, and antagonistic behavior. Twyman v. S&M Auto Brokers (N.D. Ill. Mar. 28, 2018), 2018 WL 1519159. Judge Virginia M. Kendall also referred the lawyer to the district court’s executive committee for consideration of suspension or disbarment. In her order, Judge Kendall offered important reminders to us all.
A district court has inherent power to sanction a party who “has willfully abused the judicial process or otherwise conducted litigation in bad faith.” Secrease v. W. & S. Life Ins. Co., 800 F.3d 397, 401 (7th Cir. 2015) (quoting Salmeron v. Enterprise Recovery Systems, Inc., 579 F.3d 787, 793 (7th Cir. 2009)). These sanctions are appropriate where a party or their counsel has practiced fraud upon the Court, acts in “bad faith by delaying or disrupting the litigation,” hampers enforcement of a court order, or when a party is responsible for defiling “the very temple of justice.” Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (quotations omitted). This power is “permissibly exercised not merely to remedy prejudice to a party, but also to reprimand the offender and to deter future parties from trampling upon the integrity of the court.” Flextronics Int'l, USA, Inc. v. Sparkling Drink Sys. Innovation Ctr. Ltd., 230 F. Supp. 3d 896, 906–07 (N.D. Ill. 2017) (quoting Salmeron, 579 F.3d at 797).
See, Twyman, 2018 WL 1519159, *5.
I don’t recall any fines in kindergarten, but I know my teacher worked tirelessly to teach us to play by the rules. Hopefully, we can reduce the need for corrective action across the legal profession through some self-study, exemplary effort, mentoring, and mutual encouragement.
Practice Pointers
- Talk to your clients about their specific expectations regarding civility. This becomes especially important when opposing counsel is cantankerous and difficult. Such a discussion is mission-critical prior to trial.
- Don’t respond in kind when you receive an email missive from opposing counsel. Stick to the law and the facts in your response. Better yet, pick up the phone and see if you can talk things out.
- If opposing counsel is uncivil and unprofessional, document the behavior. Also, have a colleague join phone calls or meetings so there is a witness. The behavior, however, may cease if a second lawyer is present.
- When discovery meet-and-confer efforts are proving futile, meet in person before filing a motion to compel. Most courts will appreciate the attempt to work things out face-to- face; some even require it.
- If you expect opposing counsel to bully counsel and witnesses during depositions, videotape the depositions. <
Siobhan A. Cullen is counsel at King & Spalding in Los Angeles, California.