March 01, 2016
Civility: Do We Deserve to Be Called Professionals?
Elizabeth L. Yingling
In 2010, the Florida Supreme Court sanctioned two lawyers for unprofessional emails. An ABA Journal article included some excerpts, including the following exchanges: “Better check the garbage man that comes by your trailer to make sure [your children] don’t look like him.” “[M]any of [my cases] were more important/significant than these little . . . claims that are handled by bottom feeding/scum sucking/loser lawyers like yourself.” Debra Cassens Weiss, Lawyers Sanctioned for E-Mail Insults, Including “Scum Sucking Loser” Comment, A.B.A. J., Jan. 3, 2011. And those were some of the nicer emails. Far from aberrational, these emails are just more colorful versions of what many of us find in our in-boxes from time to time as our adversaries’ zealous advocacy gets the better of them.
According to Webster’s, “professionalism” is defined as “the skill, good judgment, and polite behavior that is expected from a person who is trained to do a job well.” Query then, if lawyers routinely engage in impolite—or worse—behavior and thus do not exhibit “professionalism,” do we deserve to be called “professionals”?
Before answering, let’s take a step back and try to determine how and why we got to where we are today. Communications with our clients, our opposing counsel, and our courts are very different today than they were 25 years ago. We didn’t use email. Instead, we wrote letters.
Google “letter writing” and you’ll see repeated references to “the lost art of . . .” We no longer thoughtfully dictate letters for our assistants to transcribe—a fact that may help explain our change in the treatment of others. We likely edited our thoughts before dictating them for a third party to hear. In addition, we reviewed that transcribed letter—likely multiple times—to make sure our thoughts were clear, appropriately stated, and grammatically correct. Thus, we thought about our words before we signed the final letter and had an assistant mail it.
Jump forward to today and consider how little we think before we hit “Send.” Somehow we’ve developed a nagging belief that we’re obligated to immediately respond to upsetting emails. Previously, if we received a letter from opposing counsel with inaccurate or misleading comments, we took the opportunity to read it several times as we dictated a response. And our rejoinder often went out the following day. With the benefit of another 24 hours, we had more than ample opportunity to cool off and think more rationally about our response.
By contrast, when we receive a particularly disturbing email, we feel compelled to fire back an immediate response, lest the sender believe he has “gotten the better” of us. Do we self-edit? Rarely. Do we ask an objective third party to review our words before we send them to our opponent? Likely not. Do we even take the time to reread the email that was drafted in the heat of the moment? Not often enough. While we instruct our children to “count to 10” before reacting to an upsetting situation, we exempt ourselves from this sound advice. Yet, how often have we sent an immediate, vitriolic email response, only later to regret some of our word choices?
Emails replace not only letter writing but also face-to-face and phone conversations. We’ve all dealt with people who write blistering emails but are perfectly friendly and polite in person or on the phone. Somehow we feel invincible behind the keyboard.
Do we deserve to be called “professionals”? Most of the time. But as email has supplanted other forms of communication, we need to take a hard, introspective look at ourselves. The ABA Model Rules of Professional Conduct exhort us to “demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” Model Rules of Prof’l Conduct pmbl. ¶ 5 (1983). We should remind ourselves of those words every time our computer boots up and our email programs open—for the sake of our profession.